Taylor v. State

• Decision Date: 05 November 1898
• Citation: 47 S.W. 1055,65 Ark. 595
• Parties: TAYLOR v. STATE
• Court: Arkansas Supreme Court

47 S.W. 1055

65 Ark. 595

TAYLOR v. STATE

Supreme Court of Arkansas

November 5, 1898

Appeal from Greene Circuit Court FELIX G. TAYLOR, Judge.

STATEMENT BY THE COURT.

This action was brought, under the provisions of Sand. & H. Dig ch. 85, p. 928, to recover damages for trespass upon certain lands, which it was alleged the state owned, by cutting and removing therefrom certain timber and ties. The answer denied the taking of the timber and ties, as alleged in the complaint, and denied that the state was the owner of the land, timber and ties.

On the trial, over the objections of appellants, and to which they at the time excepted, the court permitted the appellee to introduce in evidence what purported to be a copy of the records of the state land office of "Forfeited Lands in Greene County," certified to be a true copy of such record under the hand and seal of the commissioner of state lands, and showing the forfeiture to the state, in three separate tracts, of the lands described in appellee's complaint, in the year 1892, for the taxes of 1891. Following such certificate was what purported to be a copy of a certificate from the clerk of Greene county that it was a true and correct list, and a copy of a second certificate from the same source that the same had been recorded. The appellee also introduced a certified copy of the records of the state land office, showing the donation of the lands by certain persons and the subsequent relinquishment thereof by them. Also a similarly authenticated copy of the records of the same office, showing a sale and conveyance of the lands mentioned in section 34 to J. L. Carroll by the commissioner June 11, 1895, for $ 200, and of the south half of the land described in section 33 to W. J. Wood, March 25, 1895, for $ 100.

The appellee read in evidence the deposition of J. F. Ritchie and C. B. Myers, commissioner and deputy commissioner of state lands, who stated that, in making these two sales, all timber previously cut from the land was reserved.

A. C Johnson, for appellee, testified that between January, 1895 and June 11, 1895, the appellants had cut from the lands described in appellee's complaint in section 34, 118,518 feet of timber, worth $ 1 per thousand, and 2,800 ties, worth 10 cents each; and between January 1, 1895, and March 25, 1895, they had cut from the lands described in appellee's complaint in section 33, 546 ties, worth 10 cents each. He had notified appellants that land and timber belonged to the state, and in his capacity as deputy timber inspector had forbidden them cutting the timber.

The appellants then introduced the record of the list and notice of the sale of lands in Greene county in 1892 for the taxes of 1891, showing the lands described in appellee's complaint advertised for sale as delinquent for the taxes of 1891, in three separate tracts, to which record was attached a certificate showing the publication of said notice and list on "May 12, 1892, and May 19, 1892, the first insertion being 30 days before June 8, 1891, which was the date of sale." This certificate was dated May 12, 1892, and signed "T. B. Kitchens, Clerk, by J. R. Miller, D. C."

Appellants read in evidence the deposition of C. W. Stedman, who stated that J. R. Miller succeeded T. B. Kitchens as clerk of Greene county, and witness was deputy under Miller, having had no connection with the office and having done no work whatever therein during Kitchen's incumbency. He began working in the office in December, 1892, and continued until November, 1894. Witness here examined the record of the list and notice of the sale of lands in Greene county in 1892 for taxes of 1891, and stated that he prepared the certificate of publication thereto attached, and Miller signed it after Kitchens was no longer clerk, after Miller was clerk and after witness began work for Miller as his deputy. Miller instructed him to prepare the certificate, saying that it had been overlooked.

A further statement of facts is unnecessary. The judgment was for appellee, and this appeal taken.

Judgment reversed and remanded.

Block & Sullivan, for appellants.

The judgment against the bond was erroneous. Sand. & H. Dig., § 343; 37 Ark. 528; 54 Ark. 13. It was also error to give judgment against the sureties for an amount in excess of the amount secured. 9 Wheat. 702; 81 N.Y. 406; 18 P. 228; 70 Mo. 524; 10 id. 560; 22 N.W. 730; 6 How. 298; 61 N.Y. 39; 16 N.E. 254; 28 N.W. 157; 47 Am. Rep. 140. The clerk's certificate of forfeiture is the best evidence to show its contents, and the certified record from the land office was inadmissible for such purpose. Sand. & H. Dig., § 6627; 55 Ark. 196; 47 Ark. 298; 33 id. 833; 33 S.W. 879. If it had been admissible, it was not sufficient proof. No officer's certificate is evidence, unless made so by law. 61 N.W. 687; 28 S.W. 1056; 47 Ark. 298; 33 id. 833. The forfeiture was void because of illegal fees charged. 56 Ark. 93; 61 Ark. 36; Sand. & H. Dig., § 6614. Also it was inadmissible because the certificate of publication was not attached to the record at the time of sale. 34 F. 701; S. C. 140 U.S. 634; 55 Ark. 218. This omission of the clerk could not be supplied by him after his term expired. Mech. Pub. Off. §§ 396, 509; 10 Martin (La.), 479; S. C. 13 Am. Dec. 338; 76 N.Y. 316. Actual possession, or title sufficient to show a right of possession, in plaintiff was essential; and since the tax title is void, appellee must fail on this ground. 1 Ark. 488; id. 470; 8 id. 472; 10 id. 16; 14 id. 483; 26 Ark. 505; 44 Ark. 77; 1 N.Y. 528; 65 N.Y. 125; 71 id. 380; 12 N.W. 62; 17 N.W. 314; 38 N.W. 458; 21 Wall. 58; 20 P. 780; 58 N.W. 288; 8 Ark. 406-414; 11 P. 281; 13 N.W. 426; 35 N.W. 62. A constructive possession of premises cannot arise from a void conveyance. 53 N.Y. 432; 61 N.Y. 67; 57 Ark. 523; 60 id. 163.

E. B. Kinsworthy, Attorney General, and Luna & Johnson, for appellee.

The court found that appellants were trespassers, and the evidence introduced by appellants shows that the lands were forfeited to the state. Hence appellant has no standing in court (59 Ark. 370), and the state has proved prima facie title. The duly certified transcript of the records of the state land commissioner was admissible and sufficient evidence. Sand. & H. Dig., § 2886; 47 Ark. 298; 55 id. 286. No one except the original owner or some one claiming under him could be permitted to assail the tax title. Sand. & H. Dig., § 6627; 55 Ark. 196. A trespasser will not be permitted to show an outstanding title in a stranger. Sedg. & W. Tr. Tit. §§ 58, 477, 718; 2 Waterman, Tres. § 1066; 17 Pick. 388; 6 Pa.St. 210; 47 Am. Dec. 455; 43 id. 556, et seq.; 22 Ark. 82-87; 41 Ark. 17-21; 59 Ark. 370; Black, Tax Tit. § 248; 2 Greenl. Ev. § 618; 1 Ark. 472; 55 id. 217; 10 Ia. 587; 52 Conn. 50 The tax sale record can not be contradicted or impeached by parol. 61 Ark. 36; 33 S.W. 959; 55 Ark. 218.

Block & Sullivan, for appellants, in reply.

Trees cut without the landowner's consent belong to him, and the legislature has no power to take them from him and give them to one claiming under a merely colorable title. 21 Wall. 196; 12 N.Y. 209; 68 N.W. 173; 67 N.W. 918. None of the fees of the clerk for services under the revnue laws are to be paid by the land owner or charged to the delinquent tract. Sand. & H. Dig., § 3310; 12 Ark. 60; 11 Nev. 382; 129 Mass, 135; 79 Wis. 89; 3 Edw. Ch. 56; 10 Minn. 296. The fee of the clerk for transferring the land on the tax books must be paid by the purchaser. 127 Ill. 431; 138 id. 590; 141 id. 215. The record, showing the lands to be forfeited, since it does not show that the prior essential requirements have been complied with, is not alone proof of the forfeiture. Black, Tax Tit. § 443; 55 Ark. 218; 18 So. Car. 538; 14 Minn. 355; 131 Ill. 537.

WOOD, J. BATTLE, J., absent. BUNN, C. J., dissenting.

OPINION

WOOD, J., (after stating the facts).

It may be conceded that the certified copy of the original clerk's certificate of lands forfeited to the state for the non-payment of taxes made by the state land commissioner, which he states was made from the original on file in his office, was properly admitted in evidence and that it was sufficient to show prima facie title in the state to the lands in controversy. Still, under the facts of this case, that would not enable the state to maintain this action. For it is shown by the uncontradicted proof that there was no certificate attached to the record of advertisement for the sale of the lands showing its publication, as required by Sand. & H. Dig., § 6606. Such a certificate was attached, but it appears that it was done long after the sale occurred, and long after the one who was clerk before and at the time of the sale had gone out of office, and the certificate that appears of record was made in his name and signed by his deputy, Miller, who was clerk at the time the certificate was attached. While the record of publication and the certificate thereof is made evidence of the facts in said list and certificate contained, and while said facts can not be controverted or supplemented by evidence aliunde, it is perfectly legitimate to show that what purports to be the record is suppositions, and that there was in fact none in existence

As there was no record of the publication of these lands for sale, and no certificate thereof, according to the requirements of Sand. & H. Dig., § 6606, said sale was absolutely void, and the state acquired no title thereunder. Martin v. Allard, 55 Ark. 218, 17 S.W. 878.

Now the statute under consideration only gives the right of action to the owner. Sand. & H. Dig., § 3895. The state in this case, it appears, was not only not the owner, but did not have either the actual or constructive possession...