Woodall v. Edwards

• Decision Date: 01 July 1907
• Citation: 104 S.W. 128,83 Ark. 334
• Parties: WOODALL v. EDWARDS
• Court: Arkansas Supreme Court

104 S.W. 128

83 Ark. 334

WOODALL v. EDWARDS

Supreme Court of Arkansas

July 1, 1907

Appeal from Crittenden Circuit Court; Joseph W. House, Special Judge; affirmed.

Edwards sued Louisiana Woodall and others in ejectment, to recover a tract of land described as "the northwest fractional quarter of section thirty, township nine north, range nine east," situated in Crittenden County. Defendants set up title in themselves by virtue of two years' possession under a tax deed.

There was an agreed statement of facts as follows:

"1. It is agreed that the plaintiff is the owner of the lands sued for unless his title thereto has been divested by the tax title set up in the answer and possession of the defendants thereunder.

"2. There are irregularities in the proceedings under which the tax sale in question was had which rendered it void; the tax sale referred to being the one upon which the defendant's tax deed is based.

"3. The land in controversy was assessed and sold for taxes in the name of C. A. and L. E. Morris for the taxes due thereon for the year 1894 at the sale had by the collector of said county on June 10, 1895, under the following description, viz: Owner's name, C. A. and L E. Morris; parts of section--Pt. NE 1/4, sec. 30, twp. 9 rg. 9; acres, 70; value, $ 170; tax, $ 2.10; penalty, $ .52; costs, $ .50; total tax penalty and costs, $ 3.12. Date of sale, 6-10-1895; to whom sold--J. G. James.

"4. The deed hereto attached and made part hereof and marked Exhibit "A" is a true copy of the deed executed by the county clerk to J. G. James as a clerk's tax deed in pursuance of the tax sale aforesaid.

"5. The land in controversy, as originally surveyed and platted by the United States Government, was a full quarter section containing one hundred and sixty acres and not bounded by or touching upon the Mississippi River or any other navigable water; but since said original survey the Mississippi River has changed its bed by washing away the lands lying between said quarter section (and the river) as well as part of said quarter section thereby making the same a fractional quarter section; and the latter was the condition of the said quarter section at the time it was assessed and sold for the taxes due thereon for the year 1894 at the tax sale had by the collector on June 10, 1895, at which said tract was sold to the said J. G James under the description above set out.

"6. The land in controversy is now a fractional quarter section bounded by the Mississippi River and contains sixty-three acres, and has been practically the same size and acreage ever since the year 1885.

"7. The defendants and those under whom they claim title have been in actual, adverse, open, continuous, and exclusive possession of the lands sued for in this action for more than two years next before this action was commenced, claiming title under the tax deed aforesaid. The said possession by the defendants consisted in the actual occupancy of the land in said quarter section by using the same as a place of residence, maintaining substantial fences around it, and cultivating practically all of it as a farm, on which crops of cotton and corn have been regularly made during each year of said occupancy.

"8. Only seventy acres of land in said quarter section were assessed for taxation for the year 1894, or any subsequent year, to any person, or for any prior year since 1885; and the taxes have been paid since the year 1885 under the description of Pt. NE 1/4, sec. 30, T. 9 N., R. 9 E., 70 acres. The plaintiff himself paid the taxes under that description for the years 1892 and 1893.

"9. It is agreed that neither party shall take anything herein by reason of improvements, rents and profits, or taxes paid.

"10. It is agreed that the land is described in none of the deeds under which plaintiff holds as Pt. NE 1/4, sec. 30, T. 9 N., R. 9 E., 70 acres, but is described therein according to the government survey. Said deeds cover in part the same period as the tax sale."

Judgment affirmed.

Allen Hughes, for appellants.

1. The description in the tax deed in evidence is sufficient, when considered merely as a description used in tax proceedings. 92 S.W. 21; 15 Ark. 363; 34 Id. 534; 56 Id. 172; 59 Id. 460; 62 Id. 188; 64 Id. 432; 64 Id. 580; 66 Id. 422; 69 Id. 557; 76 Id. 460. The lack of certainty was the ground upon which the descriptions were held insufficient. In this case the tract sold is not part of a larger tract; it was all there was of the tract in existence. 55 Miss. 41; 73 Ark. 221; 96 S.W. 184; 71 Ark. 390; 69 Id. 34. See 51 N.W. 167; 12 Ore. 362; 18 Iowa 261; 67 Cal. 325.

2. The title of one who claims land by reason of two years' possession under a tax deed depends not at all on the validity of the tax sale. The deed was sufficient to give color of title under the two years statute. It makes no difference that the description is insufficient. 59 Ark. 460. Nor that the taxes have been paid. 60 Ark. 499. Nor that the tax title was void on its face. 20 Ark. 542; Ib. 512; 60 Id. 163; 77 Id. 234. A description, though indefinite, is sufficient to give color of title if the court can, with the aid of extrinsic evidence which does not add to, enlarge, or otherwise change the description given, fit it to the property conveyed by the deed. 1 Cyc. 1090, and cases cited; 2 Tex. Civ. App. 680; 62 Minn. 310; 46 Tex. 334. A deed inter partes containing this description would not be void for uncertainty. 73 Ark. 221; 1 Jones, Conveyancing, § 323 et seq.; 80 Ark. 61; 56 Ark. 44; Brewster on Conveyancing, § 78; 2 Devlin on Deeds, § 1012, etc.

L. P. Berry and A. B. Shafer, for appellee.

The tax deed is void for defective description, and is not color of title. 50 Ark. 484; 92 S.W. 21; 41 Ark. 495; 48 Id. 419; 68 Id. 544; 55 Miss. 42; 70 Id. 276; 46 Id. 299; 52 Id. 596.

OPINION

HILL, C. J.

This case was tried on an agreed statement of facts, which will be set out by the Reporter. The tax title of the appellant was held void, and further that it was not color of tax title enabling the statute of two years' possession under a tax sale to be effective. And that is the sole question on appeal.

The description in the deed is as follows: "part N.E. 1/4, sec. 30, T. 9 N., R. 9 E., containing 70 acres." This description followed the description in the assessment.

In Hershy v. Thompson, 50 Ark. 484, 8 S.W. 689, it was decided that a description as follows: "Part of the S. E. 1/4 of sec. 15 in T. 8 N. and in range 32 W." was void, in that it failed to identify the part assessed from other lots or tracts as required by the statute, and that in fact it was no description.

In Schattler v. Cassinelli, 56 Ark. 172, 19 S.W. 746, this description was considered: "E. part of N. 1/2 of S. E. 1/4 of S. E. 1/4" of section containing 7.54 acres, and the court said: "A description which can be understood and made definite only by judicial construction does not accomplish the essential functions of a description in tax proceedings; and, as the law requires one to be made for the practical purpose of protecting the owner, any that conveys no certain meaning to persons ordinarily versed as to such matters does not answer the requirement."

In Cooper v. Lee, 59 Ark. 460, 27 S.W. 970, a description of "the N. N.E." of a section containing 87.19 acres in a tax sale was held void, and the court approved Judge Cooley's statement of the purpose of the description of lands in tax proceedings: "First that the owner may have information of the claim made upon him or his property; second, that the public, in case the tax is not paid, may be notified what land is to be offered for sale for the non-payment; and third, that the purchaser may be able to obtain a sufficient conveyance." The court said: "A description which is intelligible only to persons possessing more than average intelligence, or the use and understanding of which is confined to the locality in which the land lies, is...