Townsend v. Bonner

• Decision Date: 01 February 1943
• Docket Number: 4-6937
• Citation: 169 S.W.2d 125,205 Ark. 172
• Parties: TOWNSEND v. BONNER
• Court: Arkansas Supreme Court

169 S.W.2d 125

205 Ark. 172

TOWNSEND v. BONNER

4-6937

Supreme Court of Arkansas

February 1, 1943

Appeal from Arkansas Chancery Court, Southern District; Harry T Wooldridge, Chancellor; reversed.

Decree reversed and cause remanded.

Young & Macom and John L. Ingram, for appellant.

P. D Moncrief and W. A. Leach, for appellee.

OPINION

SMITH, J.

The material facts in this case are covered by the stipulations of counsel. These cover and relate to some matters not raised in the pleadings, but the pleadings will be treated as amended to conform to the stipulations.

From these stipulations the following facts appear. Ira P. Goff acquired title from the State to the 40-acre tract of land here in litigation, in 1857. The land forfeited and was certified to the State for the nonpayment of the taxes for the year 1868. Based upon this forfeiture, a donation certificate was issued to J. W. Williams in 1875, and in 1878 a donation deed was issued to Williams.

The land was sold to the State at a tax sale held June 12, 1877 for the nonpayment of the taxes assessed against it for the year 1876, and, not having been redeemed within the time permitted by law, was certified to the State as "tax forfeited lands" subject to disposal by the State under the then existing law.

At a collector's sale for the taxes of 1890, the land was sold to J. H. Hutchinson, whose administrator received a tax deed based upon this sale. On January 3, 1897, the sale was confirmed under the provisions of Chapter XXV, Sandels & Hill's Digest, (now §§ 10975-10989, Pope's Digest), upon the petition of his heirs. By mesne conveyances the plaintiffs in this case acquired this title.

On February 12, 1940, the State Land Commissioner executed and delivered to W. H. Bonner a deed based upon the sale for the taxes of 1876.

It was further stipulated that the land here in controversy at all times herein mentioned was uninclosed and unimproved, and that the plaintiffs who succeeded to the Hutchinson title, and those under whom they claim title, have continuously paid all taxes that have been assessed and levied against said land since 1895, under color of title and claim of ownership, and that more than fifteen whole years have elapsed since the first payment and the last payment.

Under this stipulation, color of title in plaintiffs is presumed under the provisions of § 8921 of Pope's Digest, and the land is deemed and held to be in the possession of plaintiffs through the payment of taxes, under their color of title derived from Hutchinson's heirs and grantees, for the period of more than seven consecutive years under the provisions of § 8920 of Pope's Digest.

Upon this record the successors to the Hutchinson title brought this suit to cancel the deed of the Land Commissioner to Bonner. The court below denied the relief prayed, that is, the cancellation of the deed from Page, Commissioner, to Bonner, and dismissed the suit as being without equity, and from that decree is this appeal.

The right of the plaintiffs to attack this deed to Bonner is very clear, and is not disputed, and, in our opinion, the relief prayed should have been granted.

It will be remembered that appellee's deed from the Commissioner of State Lands is based on a tax sale to the State for the taxes of 1876, now about 66 years ago.

Since that sale, the land was sold to Hutchinson for the taxes of 1890, and, on January 3, 1897, this sale was confirmed under the law then in force, and Hutchinson's successors in title have paid, or discharged, the taxes assessed against the land from 1891 to 1941, a period of 50 years.

Now, it may be conceded that if the State had title to this land at the time of the confirmation decree above referred to, the State's title was not divested by that decree. But this decree involves the finding that the land was regularly assessed for the taxes for which it was sold, and the confirmation decree cured any infirmity in the sale.

How did the land get back on the tax books? This could only have been done through the action of the officials charged with the duty of assessing land for taxation. Appellee insists that these officials were without authority to assess the land for the taxes of 1890, or any year subsequent to 1877, for the reason that the title to the land was in the State and that it was, therefore, not subject to taxation.

The argument in support of this contention is that under Act CXXIV of the Acts of 1873, the Act, pursuant to which the sale for the 1876 taxes was had, provided for a redemption during the period of two years only following the sale, and no redemption within that time was shown, nor does it appear that any taxes were assessed or paid on the land within that period. For these reasons it is insisted that the holding in the cases of Wallace v. Hill, 135 Ark. 353, 205 S.W. 699, and other cases applying the principles there announced, cannot be applied here.

In the case just cited, Wallace alleged title in himself under a deed made to him by the Commissioner of State Lands based upon a sale to the State under an overdue tax decree rendered in 1882. Hill and the other defendants resisted Wallace's prayer for possession. They deraigned title from the United States Government and alleged possession in themselves and those under whom they claimed for more than 30 years. No redemption from the sale under the overdue tax decree was shown, but it was there held, to quote the fourth headnote, that: "Where lands were sold to the State under the overdue tax sale, and for thirty-four years thereafter the State, through its county officers, assessed, levied and collected the taxes on such lands in the names of the original owners and their successors, it will be presumed that such lands had been redeemed from the Commissioner of State Lands by the original owners."

The reasons inducing that conclusion are applicable to the facts of this case, and we, therefore, quote somewhat extensively from that opinion, in which it was said: "While there is no proof in the record that the lands had been redeemed, yet under the above undisputed facts it will be presumed that the lands had been redeemed. After a lapse of thirty-four years during all of which time the State each year through its...