Tatum v. Arkansas Lumber Company

• Decision Date: 26 February 1912
• Parties: TATUM v. ARKANSAS LUMBER COMPANY
• Court: Arkansas Supreme Court

146 S.W. 135

103 Ark. 251

TATUM v. ARKANSAS LUMBER COMPANY

Supreme Court of Arkansas

February 26, 1912

Appeal from Bradley Chancery Court; Zachariah T. Wood, Chancellor reversed.

Decree reversed and cause remanded. Petition for rehearing denied.

J. R Wilson and Williamson & Williamson, for appellant.

1. The statute of limitations does not apply. The longest period of taxpaying by appellee or its grantors on any of the lands involved, intervening between the commencement of such payments and the institution of this suit, is five years and nine months, and the shortest period two years and nine months.

2. The testimony entirely fails to show an abandonment of the lands by appellant's ancestor. Tiedeman on Real Prop. § 739; 24 L. R. A. (N. S.) 1161; 66 Ark. 26; 1 Cyc. 1139. Appellee lumber company can acquire no advantage by reason of any statement made by T. J. Tatum, since a stranger can neither take advantage of an estoppel nor be bound by it. Tiedeman on Real Prop. § 731; 16 Cyc. 779. Abandonment will not amount to laches short of seven years unless there are supervening equities in favor of the holder of a tax title.

3. There is no such showing of laches as will defeat the claim of appellants. 75 Ark. 382, 387; 152 U.S. 416; 45 Ark. 81; 83 Ark. 154, 161; 90 Ark. 430; 94 Ark. 226; 138 S.W. 1011-1012; 140 S.W. 278; 62 Ark. 319.

Fred L Purcell, for appellee.

While it is true that at common law abandonment of lands was not recognized, as contended by appellants, yet it is recognized now that lands may be lost by abandonment, i. e., by relinquishment of possession with intention not to return and occupy it. 70 Ark. 538. The intention to abandon may be shown by declaration or by conduct of the party who is charged with the abandonment. 135 Am. St. Rep. 888; 93 Ark. 298; 135 S.W 908; 145 U.S. 368. Especially will an owner be held to have abandoned the land and to be barred on account of his laches where, knowing that it had been forfeited to the State for nonpayment of taxes, he takes no steps to redeem, makes statements to the effect that he had let it go because it was worthless, and asserts no rights until after the purchaser has been put to expense in good faith to enhance the value of the land, and where its value has largely increased. 92 Ark. 500, 501; 81 Ark. 303; 138 S.W. 1011-1012.

Gaughan & Sifford, amici curiae.

Abandonment of right to the land by a plaintiff or his ancestors and laches on the part of either or both are good defenses in an action of this kind. By abandonment is meant a positive intent of renunciation of one's rights to the land, and not a mere leaving or quitting of the corpus of the property. Only by recognizing this difference and this distinction and the sufficiency of either as a defense can the decisions of this court in tax forfeiture cases be reconciled. The contention of appellant that, as to wild and unoccupied lands, the defense of abandonment of the right to the lands by the original owner can not be maintained, can only be sustained by overruling the cases of Turner v. Burke, 81 Ark. 352, and Pirtle v. Southern Lumber Co., 98 Ark. 266. See also 138 S.W. 880.

OPINION

HART, J.

On December 31, 1910, this action was instituted in the chancery court by J. L. Tatum et al., as the sole heirs at law of Thomas J. Tatum, deceased, against the defendant, Arkansas Lumber Company, to cancel certain tax deeds to the defendant as a cloud upon the plaintiffs' title and to quiet the plaintiffs' title thereto. The lands are situated in Bradley County, Arkansas, and comprise about six hundred acres.

On May 15, 1857, they were conveyed by the State of Arkansas to Thomas J. Tatum as swamp and overflowed lands; they were forfeited to the State for the nonpayment of taxes for the years 1869-70-71. Thereafter Thomas J. Tatum never paid any taxes on the lands. They were wild and unimproved, and the timber on them was chiefly hardwood. On January 11, 1900, Thomas J. Tatum died in Bradley County, Arkansas, where he had lived since he purchased the land from the State. He was never married, and left surviving him as his sole heirs at law the plaintiffs in this action, who are his nephews and nieces and the children of his deceased nephews and nieces.

On September 3, 1906, the State conveyed certain of these lands to J. H. Adams, and on November 1, 1906, Adams conveyed them to the defendant.

On December 8, 1904, the State by its donation deed conveyed to H. A. Davis some of the lands, and on the 8th of May, 1905, Davis conveyed said lands to the defendant.

On July 31, 1906, the State conveyed to Grand Davis by donation deed certain of the lands, and on the 11th of August, 1906, Grand Davis conveyed said lands to the defendant. On April 30, 1904, the State conveyed to S. A. Parker, certain of the lands, and on August 1, 1904, Parker conveyed them to the defendant. On December 12, 1905, the State conveyed to the defendant certain other tracts of these lands.

Before the institution of this suit, some of the plaintiffs conveyed their interest in these lands to the defendant and its grantors.

The chancellor found that the forfeiture of the lands to the State for the nonpayment of taxes was void. The chancellor also found that the plaintiffs were the sole heirs at law of the said Thomas J. Tatum, and that they had the legal title to said lands. The chancellor, however, found that the plaintiffs were barred by laches from asserting their title to the lands, and dismissed the complaint for want of equity. To reverse that decree, this appeal has been prosecuted by the plaintiffs.

The record shows that the State of Arkansas conveyed these lands to Thomas J. Tatum in 1857 as swamp and overflowed lands, and that he did not convey them to any one up to the time of his death in 1900. The testimony abundantly establishes the fact that the plaintiffs are the sole heirs at law of the said Thomas J. Tatum, deceased, and we do not deem it necessary to set it out at length. The chancellor found that the forfeiture to the State for the nonpayment of taxes was void, and it is not claimed upon this appeal that the chancellor erred in so finding. Therefore, it is not necessary to discuss further that feature of the case.

The principal issue raised by the appellee is whether or not the chancellor erred in holding that the plaintiffs were barred by laches from asserting title to the lands involved in this suit.

Mr. Pomeroy says that the true doctrine concerning laches has never been more concisely and accurately stated than as follows: "Laches, in legal significance, is not mere delay, but delay that works disadvantage to another. So long as parties are in the same condition, it matters little whether he presses a right promptly or slowly within limits allowed by law; but when, knowing his rights, he takes no step to enforce them until the condition of the other party has in good faith become so changed that he can not be restored to his former state, if the right be then enforced, delay becomes inequitable, and operates as estoppel against the assertion of the right. The disadvantage may come from the loss of evidence, change of title, intervention of equities, and other causes; but when a court sees negligence on one side, and injury therefrom on the other, it is a ground for denial of relief." 5 Pomeroy, Eq. Jur. (3 ed.), § 21.

The doctrine of laches was defined in substantially the same language in the case of Earle Improvement Co. v. Chatfield, 81 Ark. 296, 99 S.W. 84, and has been adhered to ever since. The record in this case shows that the defendant and its grantors have paid the taxes on the land from a period of time ranging from two to five years. In the case of Herget v. McLeod, 102 Ark. 59, this court, following the rule laid down in Chancellor v. Banks, 92 Ark. 497, after discussing the rule laid down in that case and the prior decisions of the court, said: "It will thus appear that, before the plea of laches can be available to deprive the true owner of his land, it must be shown that the party claiming the same and his grantors have, prior to the commencement of the suit, paid the taxes on the land under color of title for at least seven years, the statutory period of limitation. The fact that the true owner has failed to pay taxes on the land for a period longer than seven years will not alone bar him; but it must appear that during such period the defendant and those under whom he claims have themselves paid the taxes thereon for at least seven years prior to the institution of the suit before the true owner can be declared barred by laches."

As above stated, the record shows that this was not done.

In the case of Earle Improvement Company v. Chatfield supra, the court held that the chancellor should not divest the title of the owner simply because during his failure to pay taxes there has been a great enhancement in the value of the land. The court said there must be some supervening equities calling for the application of the doctrine of laches. In the case at bar the defendant introduced evidence tending to show that its agent who purchased the land for it had been told by different persons before and since he bought the lands that Thomas J. Tatum had abandoned his claim of title thereto. It does not claim, however, that Thomas J. Tatum or the plaintiffs in this suit made any representations to it or to its agents that they had abandoned or waived their claim of title to the lands in controversy. We do not deem it necessary to decide whether such representations made to third parties before the institution of this suit would constitute intervention of equities so as to bar plaintiffs under the doctrine of laches, for the reason that the preponderance of the testimony shows...