Union Sawmill Company v. Pagan

• Court: Arkansas Supreme Court
• Writing for the Court: WOOD, J.
• Citation: Union Sawmill Company v. Pagan, 175 Ark. 559, 299 S.W. 1012 (Ark. 1927)
• Decision Date: 28 November 1927
• Docket Number: 6
• Parties: UNION SAWMILL COMPANY v. PAGAN

299 S.W. 1012

175 Ark. 559

UNION SAWMILL COMPANY v. PAGAN

No. 6

Supreme Court of Arkansas

November 28, 1927

Appeal from Union Chancery Court, Second Division; J. Y. Stevens Chancellor; reversed.

Decree reversed and cause remanded.

Gaughan & Sifford, for appellant.

Goodwin & Goodwin, for appellee.

OPINION

WOOD J.

This in an action by the Union Sawmill Company against W. G. Pagan et. al., in the Union Chancery Court. The plaintiff alleges that it is the owner and entitled to the southeast quarter of the southeast quarter of section 3, township 18 south, range 13 west, Union County, Arkansas, and it deraigns title from the United States Government to the State of Arkansas, and from the State, through mesne conveyances, to the plaintiff. The plaintiff alleges that the land had at all times been uninclosed and unimproved, and that it and those under whom it holds had paid the taxes regularly and consecutively for each year since 1905. The plaintiff alleged that the defendants were asserting title under a donation deed from the State to Mary McHenry, dated April 12, 1921. The plaintiff alleged that one of the defendants, W. G Pagan, was engaged in cutting timber on the land; that Pagan was insolvent, and that, unless restrained, he would continue to cut the timber, to the great damage of plaintiff. Plaintiff alleged that it had no adequate remedy at law, and prayed that Pagan be restrained from cutting the timber, and for damages in the sum of $ 100 for the timber already cut, and that plaintiff's title be quieted against the defendants, and that all deeds under which defendants claimed be canceled.

The defendants answered, denying all material allegations of the complaint, and set up that, on June 4, 1885, Mary McHenry obtained a donation deed from the State of Arkansas to the land mentioned in the complaint, and that she took immediate possession of the land and improved a part thereof, and had continued in the possession thereof until the present time openly, peaceably, and adversely to all the world. It was also alleged that Pagan and his immediate predecessors in title were solvent, and that they had been damaged by the action of the plaintiff in having a restraining order issued, in the sum of $ 500. Defendants prayed for dissolution of the restraining order and for judgment against the plaintiff in the sum of $ 500, and that the record title in the plaintiff be canceled.

The cause was heard upon the pleadings, the depositions of the witnesses and record of deeds introduced by agreement of counsel, and also agreement of counsel showing that the taxes on the land in controversy had been regularly paid by the plaintiff and its predecessors in title every year since 1904, except for the year 1923. The court entered a decree dismissing the plaintiff's complaint for want of equity, and quieting title to the lands in the defendants as against the plaintiff, and dismissing the defendants' prayer for damages against the plaintiff. The plaintiff duly prosecutes this appeal.

1. The appellant proved record title to the land from the United States Government. The land was granted to and selected by the State under act of Congress approved September 4, 1841. The record of deeds shows that the State deeded the land to J. D. Hostetter, January 22, 1904, and by him, through mesne conveyances by warranty deed to various parties, the land was conveyed to the appellant on January 22, 1906. True, there was introduced in evidence at the trial of this cause a duplicate donation deed, showing that the lands were deeded by the Commissioner of State Lands to Mary McHenry, on June 4, 1885, which deed recited that the lands were forfeited to the State for the nonpayment of taxes for the year 1878. But it appears from the record of deeds in evidence that, at the time of this alleged forfeiture, the title to the land was still in the State of Arkansas. The first evidence of any conveyance from the State was the patent to J. D. Hostetter on January 27, 1904.

In Brinneman v. Scholem, 95 Ark. 65, 128 S.W. 584, we held (quoting syllabus): "A donation deed purporting to convey land as having forfeited to the State for taxes is ineffective to convey any title where, at the time of the alleged forfeiture, the land was not subject to taxation, being property of the State." It follows that the appellant had legal record title to the land, and that Mary McHenry and those claiming under her acquired no title to the land by virtue of the donation deed to her of June 4, 1885.

2. The next question is, did Mary McHenry and those claiming title under her to the land in controversy acquire title thereto by adverse possession thereof under the seven-year statute of limitations? A decided preponderance of the evidence--indeed, practically the undisputed testimony-- shows that the tract of land in controversy is unimproved and uninclosed. This forty-acre tract is in section 3, township 18 south, range 13 west; it was embraced in the donation deed to Mary McHenry, together with the south one- half of the southwest quarter of section 2, being eighty acres, in the same township and range. It is stipulated by the parties to the record that the taxes on the lands in controversy have been paid by the appellant each and every year since 1905, with the exception of the year 1923. The lands in controversy being unimproved and uninclosed, the appellant acquired title thereto by such payment of taxes. Section 6934, C. & M. Digest; Fenton v. Collum, 104 Ark. 624, 150 S.W. 140, and cases there cited.

But it is the contention of the appellees that, inasmuch as they entered on, and, for more than seven years, were in actual, open, continuous, and adverse possession of a part of the east eighty in section 2, adjoining the land in controversy, under the donation deed of 1885, this would give them title by constructive adverse possession to all of the east eighty as well as the land in controversy in section 3.

To sustain their contention the appellees cite the recent case of Moore v. McHenry, 167 Ark. 483, 268 S.W 858, in which the title to the eighty acres in section 2 under this same donation deed was involved. But the decision and opinion in that case, as we construe it, has no application to the facts of this record. The decision in that case, as shown by the pleadings and testimony adduced by the respective parties, turned upon the issue as to whether or not the plaintiffs in that case acquired title by adverse possession to the eighty acres of land under the seven-year statute of limitations. The plaintiffs in that case claimed, and proved to the satisfaction of the jury, that they entered into possession of a part of the eighty-acre tract of land in controversy under the donation deed to ...