Turner v. Burke

• Citation: 99 S.W. 76
• Parties: TURNER et al. v. BURKE et al.
• Decision Date: 31 December 1906
• Court: Supreme Court of Arkansas

Page 76

99 S.W. 76

TURNER et al. v. BURKE et al.

Supreme Court of Arkansas.

December 31, 1906.

Appeal from Phillips Chancery Court; E. D. Robertson, Chancellor.

Suit by Oscar Turner and others against R. C. Burke and others to quiet title to certain real estate. From a decree in favor of defendants, complainants appeal. Affirmed.

W. G. Denning and J. W. & M. House, for appellants. Rose, Hemingway, Cantrell & Loughborough, for appellees.

HILL, C. J.

In 1859 Oscar Turner, the first of the name in this record, purchased of the state the land in controversy, a tract of nearly 2,000 acres of wild and unoccupied lands. It is alleged that the state conveyed it under the swamp land act, and for the purpose of this case it may be taken that it was properly selected and listed to the state as swamp lands under the act of Congress. Oscar Turner the first conveyed to Oscar Turner, Jr., his son, who was for a time a member of Congress from Kentucky, and was in Washington during the time the judgment hereinafter referred to was rendered against him. This Oscar Turner died in 1902, and by will left his property to the appellants, his wife and infant son, Oscar Turner the third. This was a suit to remove clouds from the title and to quiet it in appellants, who were plaintiffs in the chancery court and was brought in 1904. The plaintiffs offered to pay taxes and interest thereon, and attacked the overdue tax decrees upon which defendants' title rested. The bill was dismissed and the plaintiffs brought the case here. The Turners did not pay any taxes at any time since 1859, and the land forfeited for taxes a few years after the War. Like most tax sales at that time they were void, but there is no evidence that the taxes were illegal. All of the lands were sold under overdue tax decrees in 1883. Some of it was sold to parties at said sales and various defendants claiming several of the tracts in controversy deraign title directly to the purchase at such sales. Much of the land in controversy was not sold to individuals under the overdue tax decrees, but was struck off to the state, and different tracts were purchased from the state by the various defendants. These purchases ranged from 1891 to 1902. All the tracts passed through the overdue tax decrees of 1883, and the only difference in them is that some of the defendants deraign title directly through the sales and others through the state; the state's title resting on the overdue tax decrees. About 1897 Oscar Turner, Jr., entered into a contract with S. B. Crowder of Louisville, Ky., under which Crowder was authorized to represent his interests in these lands and clear the title for him, and to receive 50 per cent. of the land recovered, Crowder to pay redemption charges and expenses. Crowder came to Phillips county and investigated the situation and found out the facts about the titles and the character of the land and ascertained the cost of redemption. He employed counsel in these matters, and had him call upon several darkies who had donated some of the Turner lands from the state, looking towards a settlement with them. No payment of taxes or redemptions were made. Later Turner himself came and investigated the situation — this was about 1898 — and decided that the lands were not worth the cost of redemption. In 1900 Mr. Phillips, the attorney employed by Crowder, and with whom Turner had consulted, sued him for a fee and attached all the land in controversy, except a half section. This suit proceeded to judgment, and most, if not all, the defendants have procured title from that sale, doubtless intending to fatten the title based upon the overdue tax decrees.

The evidence shows that up to 1899 the land was of little value, but since that time has rapidly risen in value, and at the time of the institution of this suit was worth about $15 per acre. Just how much they were worth per acre when Oscar Turner, Jr., died in July, 1902, is not shown exactly, but it is shown that the rise was rapid after 1899, which made them worth many hundred per cent. more than when he decided not to redeem them in 1898. He had notice of the attachment suit against him in 1900. He was then a member of Congress, and a copy of the complaint was served upon him in Washington, but he declined to attend to it on account of an error of description of the land as shown in the copy served upon him. The gravamen of this bill is an attack upon the overdue tax decrees and upon the judgment in the attachment suit.

To sustain appellants' title the overdue tax decrees must be held void, and as to most of the land also the judgment in the attachment suit must be declared void. The court, however, declines to go into the investigation of the grounds of attack on the overdue tax decrees, and it is not necessary to notice the attachment suit, as it is but a second hurdle for appellants to cross, and they have fallen before the first one is reached.

The laches of the...