Updegraff v. Marked Tree Lumber Co.

• Decision Date: 06 May 1907
• Citation: 103 S.W. 606
• Parties: UPDEGRAFF v. MARKED TREE LUMBER CO. et al.
• Court: Arkansas Supreme Court

103 S.W. 606

UPDEGRAFF v. MARKED TREE LUMBER CO. et al.

Supreme Court of Arkansas.

May 6, 1907.

On Rehearing, June 17, 1907.

Appeal from Mississippi Chancery Court; Edward D. Robertson, Chancellor.

Suit by George T. Updegraff against the Marked Tree Lumber Company and others. From a decree for defendants, plaintiff appeals. Affirmed in part, and reversed and remanded in part, with directions.

Geo. W. Murphy, Wm. M. Lewis, and Chas. T. Coleman, for appellant. N. F. Lamb and W. J. Lamb for appellees.

McCULLOCH, J.

This is a suit in equity, instituted by plaintiff, George T. Updegraff, against defendant Marked Tree Lumber Company, to quiet the title to an undivided one-half interest in sections 29, 30, 31, 32, and 33, township 13 north, range 9 east, Mississippi county. Plaintiff sets forth the following chain of title: (1) United States to state of Arkansas. Swamp land grant of September 28, 1852. (2) State of Arkansas to M. P. Suggett. Certificate of entry in 1858. (3) M. P. Suggett to W. R. Rightor. Assignment of certificate of entry. (4) W. R. Rightor, by his assignee in bankruptcy, to J. J. Hornor. Deed to an undivided one-half interest in said five sections executed March 2, 1868. (5) Executors of J. J. Hornor, deceased, to the plaintiff, George T. Updegraff. Deed executed February 18, 1905, under power contained in the will. (6) State of Arkansas to heirs of M. P. Suggett. Patent issued April 24, 1903. (7) Heirs of M. P. Suggett to R. E. Lee Wilson. Deed executed in 1903. (8) R. E. Lee Wilson to Geo. E. Scott. Deed executed in 1904. (9) Geo. E. Scott to the plaintiff, Geo. T. Updegraff. Deed executed February 24, 1905.

The defendant claims title as follows: (1) By decree of the chancery court of Mississippi county, rendered at the spring term, 1895, in the case of Levee Board v. Arkansas Land Company, under which sections 29, 30, 32, and 33 were sold by the commissioner to Harry De Wolf; and by decree rendered at the same term in the case of Levee Board v. Jno. S. Toof, under which section 31 was sold to Jno. B. Driver; and by mesne conveyance from Harry De Wolf and Jno. B. Driver to Jno. T. and W. A. Fuller. (2) By confirmation decree rendered at the March term, 1902, in the proceeding of Jno T. and W. A. Fuller, ex parte, purporting to confirm the levee sales to De Wolf and Driver. (3) By mesne conveyances from Jno. T. and W. A. Fuller to the defendant the Marked Tree Lumber Company. (4) By payment of taxes for seven years under color of title. (5) On account of laches of the plaintiff in instituting suit.

It will be observed from the foregoing that the plaintiff shows a complete chain of title, and the questions presented are whether that title has been divested either by the decree of the chancery court in the levee board suit or by the confirmation decree, or by the statute of limitations on account of the payment of taxes or by laches of the plaintiff. These questions will be considered in the order named above.

Plaintiff's claim to section 31 stands in a different attitude from that of the other sections, and will be separately treated in this opinion. Defendant's claim of title to sections 29, 30, 32, and 33 begins with the sale under decree of the chancery court in the suit of St. Francis Levee Board v. Arkansas Land Company. The decree in that case was a personal one against the Arkansas Land Company, pursuant to the act of 1893, authorizing that board to sue in the chancery court to foreclose its lien for taxes. It was not a proceeding in rem, nor in the nature of a proceeding in rem. It was purely personal, and bound only the parties to that record. The Arkansas Land Company was not the owner of the land, and was not in privity with the plaintiff's chain of title. Therefore plaintiff's title was not affected by that decree. Wilson v. Gaylord, 77 Ark. 477, 92 S. W. 26. Counsel for appellee concede this much: The confirmation proceedings in 1902 were instituted and prosecuted to a final decree under the statute (sections 661-675, Kirby's Dig.), providing for the confirmation of sales of land for taxes and sales made pursuant to judgments and decrees of courts of record. We are therefore to consider whether the effect of this decree was to confirm and make perfect the title of the purchaser under that sale, or whether it merely confirmed the validity of the judicial sale; in other words, whether the title or merely the sale was confirmed, for, as the purchaser took no title under the sale, a confirmation of the sale only would confer no title upon him. We are of the opinion that the decree did not confirm the title or vest any title in the purchaser, but merely declared the sale to be valid, and only perfected such title as the purchaser would have gotten if the sale had been regular. Buckingham v. Hallett, 24 Ark. 519; Lonergan v. Baber, 59 Ark. 15, 26 S. W. 13; Smith v. Thornton, 74 Ark. 572, 86 S. W. 1008; Mason v. Gates (Ark.) 102 S. W. 190; Boynton v. Ashabranner, 75 Ark. 427, 88 S. W. 566, 1011, 91 S. W. 20. The case of Smith v. Thornton, supra, involved the right of a minor to redeem from a confirmed tax sale, and the question was squarely presented whether confirmation cut off the right of redemption. The court decided that it did not cut off such right, and in the opinion said: "The decree only adjudged that the tax sale was valid and cut off all such interests that were affected by a valid tax sale, but had no effect upon those holding rights that were not affected by said tax sale." This court, in Boynton v. Ashabranner, supra, in discussing the effect of a decree confirming a tax sale, said: "The theory rests upon the proposition that the owner of the land has in the confirmation proceedings had his day in court to contest the validity of the sale, and is barred from thereafter asserting its invalidity on any ground. The effect of the decree is not to confer title to the land, but merely to declare the sale thereof valid." In the case of Mason v. Gates, the question was presented whether a confirmation decree could render valid a tax sale made pursuant to a void statute; the court holding that the decree could in effect only declare that the statute had been complied with, and that, if compliance with the statute could not pass title, the confirmation added nothing to its validity. We think these cases are conclusive of the question now presented, as the decree in the suit against the Arkansas Land Company did not, and could not, affect plaintiff's title. The confirmation of the sale under that decree added nothing to its force.

The parties entered into a stipulation to the effect that appellee and those under whom it claimed title had paid taxes on the lands under color of title seven times, beginning with the payment of March 15, 1898, for the taxes of 1897. This suit was commenced after the seventh payment, but before the expiration of the full period of seven years from the date of the first payment. The question is therefore presented whether the payment of taxes on unimproved and uninclosed lands seven times is sufficient to give title by limitation where suit is commenced before the expiration of seven years from the first payment. The statute reads as follows: "Sec. 5057. Unimproved and unenclosed land shall be deemed and held to be in the possession of the person who pays the taxes thereon if he have color of title thereto, but no person shall be entitled to invoke the benefit of this act unless he and those under whom he claims shall have paid such taxes for at least seven years in succession, and not less than three such payments must be made subsequent to the passage of this act." This statute was construed, in the case of Towson v. Denson, 74 Ark. 302, 86 S. W. 661, to mean that the payment of taxes should constitute such possession as would, after payment for the required number of years in succession, ripen into title by limitation, and that the possession commenced with the first payment. The question was not presented in that case as to whether the full period of seven years must have elapsed before such possession amounted to complete investiture of title. It will be observed that the act merely declares that the person who pays the taxes on unimproved and uninclosed lands shall be deemed to be in possession thereof, if he have color of title. The statute does not undertake to fix the period of limitation, but merely declares the continuous payment of taxes under color of title to be possession, and leaves the general statute of limitations applicable thereto. The only proviso or condition in the act is that the person who pays the taxes, before he can claim the benefits thereof, must have paid at least seven years in succession, three of which must have been since the passage of the statute. It follows from this that where lands continue to be unimproved and uninclosed, and seven successive payments...