Woolfork v. Buckner

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

29 S.W. 372

60 Ark. 163

WOOLFORK v. BUCKNER

Supreme Court of Arkansas

January 12, 1895

Appeal from Chicot Circuit Court CARROLL D. WOOD, Judge.

STATEMENT BY THE COURT.

This suit was brought by the appellant to recover the NE. 1/4 of the NW. 1/4 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. 1-2 of the NE. 1/4 of section 7, and the SE. 1/4 of the NE. 1/4 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 limitation (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 twelve acres of the NE. 1/4 of the NW. 1/4 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 NE 1/4 of NW 1/4 of section 7, except twelve 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.

1. The tax-deed showed that both tracts were sold together, and the sale was therefore void. 31 Ark. 314; ib. 491; 29 id. 476; 30 id. 579.

2. The sale was not advertised as required by law, and the collector had no power to sell. 30 Ark. 739; 55 id. 192; 42 id. 87.

3. There is no proof of two years actual possession. Every presumption is in favor of the owner of the original title. 35 Wis. 241. But the tax-deed was void on its face, and could not start the statute of limitations, even if defendant had shown two years actual possession. 132 U.S. 239; 3 T. B. Mon 161; 23 Tex. 46; 43 Ia. 191.

John C. Connerly and R. A. Buckner for appellee.

1. The proof of two years adverse actual possession is ample, and this court will not disturb the finding.

2. The proof only shows that no advertisement was made in full accordance with law. But sec. 5782 Mansf. Dig. prohibits a clerk's deed from being attacked for such defect. See also 55 Ark. 192 and Mansf. Dig. secs. 5780-1-2.

3. The appellant is barred by the two years statute. 46 Ark. 96; 53 id. 418; Mansf. Dig. secs. 4475, 5782.

HUGHES, J. WOOD, J., being disqualified, did not sit in this case.

OPINION

HUGHES, J. (after stating the facts).

The evidence is clear that the appellee and those under whom he claims had obtained title to the twelve acres awarded him in the judgment of the court, in the NW. corner of the NE. 1/4 of the NW. 1/4 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. 542; 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 tax-deeds offered in evidence by the appellee, because they failed to show regular and valid tax-sales, and were void etc. Without discussing the numerous objections made to the deeds, most of which are verbal criticisms, it may be conceded, for the purposes of this case, that their recitals fail to show regular and valid tax-sales, and that the deeds, are void, yet it was competent for the appellee to introduce them, in connection with the evidence of his actual and continuous possession of the land for the full period of limitation, to defeat the action of the appellant, as held in Elliott et al v. Pearce, (20 Ark. 508), at the present term. It is true, as stated by the counsel for appellant, that in Moore v. Brown, 14 McLean 211, Judge McLean held that a tax deed void upon its face could not avail a person who...