Woolfork v. Buckner

• Decision Date: 12 January 1895
• Parties: WOOLFORK v. BUCKNER.
• Court: Arkansas Supreme Court

Page 372

29 S.W. 372

WOOLFORK v. BUCKNER.

Supreme Court of Arkansas.

January 12, 1895.

Appeal from circuit court, Chicot county; Carroll D. Wood, Judge.

Action by R. L. Woolfork against George R. Buckner, executor, to recover land. From a judgment declaring title to a portion of the land in defendant, plaintiff appeals. Reversed.

This suit was brought by the appellant to recover the N. E. ¼ of the N. W. ¼ of section 7, township 14 S., range 3 W., which the appellee had in possession, and claimed to own under the seven-years statute of limitations. The appellant also sought to recover the W. ½ of the N. E. ¼ of section 7, and the S. E. ¼ of the N. E. ¼ of section 8, both in township 14 S., range 3 W., which the appellee claimed to own under purchases at tax sale for the taxes of 1877; and set up the two-years statute of limitations (section 4475, Mansf. Dig., and section 4816, Sand. & H. Dig). The appellant showed in evidence title deeds from the state to his vendors, connecting him with the original entry of the lands. The appellee read in evidence his tax deeds for the two pieces claimed under tax purchases, which were apparently regular, and prima facie evidences of title, having introduced these in lieu of a deed showing the lands to have been sold together, to which exceptions had been sustained. There was evidence showing that the appellee and his vendors had had more than seven years' adverse possession of the 12 acres of the N. E. ¼ of the N. W. ¼ of section 7, township 14 S., range 3 W. There was evidence in the testimony of the clerk of Chicot county, where the lands are situate, that there was no notice of the tax sale under which the two pieces were claimed to have been purchased. The clerk testified that "the list of lands returned as delinquent for the taxes of the year 1877 was delivered by him to the publisher of the Lake Shore Sentinel to be published; that he had the same set up in the paper, and it was published once, but not in time for the first notice; and the publisher got on a spree, and had merely the date of the paper changed, and had the paper thus changed partly published, and then entirely failed to publish said delinquent list as required by law." It was also shown by the testimony of Mark Valentine, an attorney at law, that "there was no legal or proper notice of the sale given." The court found for the appellant as to the N. E. ¼ of N. W. ¼ of section 7, except 12 acres, claimed under the seven-years statute of limitations, which was awarded to the appellee, and for the appellee as to the other lands, and judgment was rendered accordingly, the cause having been tried by the court sitting as a jury, by consent of the parties. The appellant seeks to reverse this judgment, so far as it is in favor of the appellee, by this appeal.

D. H. Reynolds and John B. Jones, for appellant. John C. Connerly and R. A. Buckner, for appellee.

HUGHES, J. (after stating the facts).

The evidence is clear that the appellee and those under whom he claims had obtained title to the 12 acres awarded him in the judgment of the court in the N. W. corner of the N. E. ¼ of the N. W. ¼ of section 7, township 14 S., range 3 W. The tax titles relied upon by the appellee were void for want of notice of the tax sale. Without actual possession by appellee, there was no possession by him, as constructive possession follows the title when there is no actual adverse possession, — "possessio pedis." Gates v. Kelsey, 57 Ark. 523, 22 S. W. 162. The appellant should have had a judgment for the recovery of the two tracts claimed by the appellee under the tax purchases. As to these pieces claimed under the tax purchases, the judgment is reversed, and the cause remanded for a new trial. As to the other lands involved herein the judgment of the circuit court is affirmed.

The appellee received a tax deed in the first instance, showing that the two pieces of land purchased by him were sold together, which would, of course, make the sale void. He afterwards received a deed for each tract, correcting the error in the first deed. The appellant contends that, the first deed being void upon its face, the two-years statute of limitations would not run in favor of one in possession under a tax purchase of which such a deed was sought to be made the evidence. In this, we think, the able and learned counsel for appellant are in error. In the case of Cofer v. Brooks, 20 Ark. 543, objection was urged to tax deeds; that, being void upon their faces, they could not afford any protection, under the five-years special statute of limitation. Upon this question the court said: "It is insisted for the appellant that the court below erred in admitting the...