85 Ark. 4 | Ark. | 1907
This is a suit by Catherine A. Beardsley and W. C. Rodgers to enjoin and restrain J. B. Hill and others from conveying, selling, incumbering or otherwise interfering with the title and right of the plaintiffs in and to certain lands, to quiet the title of plaintiffs thereto, and for all other proper relief.
Lands were forfeited to the State of Arkansas for the non-payment of taxes for the year 1893 by the following descriptions : “Mid. 1-3 Pt. SE. NW. Sec. 26, Tp. 9 S., R. 27 west, 131 1-3 acres; Mid. 1-3 Pt. SW. NE. Sec. 26, Tp. 9 S., R. 27 West, 92-100 acres; W. 1-2 Mid. 1-3 Pt. SE. NE. SE. Sec. 26, Tp. 9 S., R. 27 west, 6 acres. The defendant, J. B. Hill, purchased lands according to such description from the State of Arkansas, and the State Land Commissioner conveyed the same to him by the same description. The. defendants claim the land in controversy under such deed. This is the cloud plaintiffs seek to remove.
The court, upon hearing-, found that there was no equity in the plaintiffs’ complaint, and dismissed the same, and the plaintiffs appealed.
There is no relief sought against the defendants, except J. B. Hill and his wife. Appellants deny that they have been in possession. If it be conceded that the evidence adduced at the hearing shows that they have been in possession, we think it shows that they have acquired title by adverse possession for more than seven years before the bringing of this suit; for, if they had possession, it continued more than seven years, and all the concomitant circumstances show it was adverse. In saying what- we have we do not decide that Hill or his wife is in possession, or has been.
But they, appellants, are not seeking to recover possession of the lands in this suit. They ask the court to quiet their title by cancelling the deed of the State to J. B. Hill, and to enjoin and restrain him from casting clouds upon their title by selling the land.
The deed of the State to Hill is void upon its face on account of a defective description of the lands. It describes no land, and is no cloud upon title. Doe v. Porter, 3 Ark. 18, 57; Hershey v. Thompson, 50 Ark. 484, 491; Dickinson v. Improvement Co., 77 Ark. 570, 576; Gannon v. Moore, 83 Ark. 196, 198; Woodall v. Edwards, 83 Ark. 334; Beardsley v. Hill, 71 Ark. 211; Cooper v. Lee, 59 Ark. 460, 463; Rhodes v. Covington, 69 Ark. 357, 359.
“It is not an apparent title, nor does it priina facie create a right which the true owner, or even an occupant without title, of land must bring forward evidence to rebut.” Haggart v. Chapman & Dewey Land Company, 77 Ark. 527, and cases cited.
The deed not being a cloud upon the title, a court of equity will not interfere to set it aside. See cases cited above. Neither will a court of equity interfere to. enjoin the sale of the land by Hill under such title to prevent a cloud. High on Injunctions, says: “It is difficult to establish any exact test which will be applicable in all cases to determine what constitutes such a cloud upon title as to authorize a court of equity to interfere for its prevention. It has been held, however, that if the sale or conveyance which it is sought to restrain is such that in an action of ejectment brought thereunder the real owner of the property would be obliged to offer evidence to defeat a recovery, then such a cloud would be raised as to warrant the interference of equity. Upon the other hand,' if under the levy and sale a purchaser would not acquire even-an apparent title to the premises, the execution being against one who had no title, so that the purchaser in an action of ejectment could not recover upon his own showing, and defendant’in ejectment would not be put to proof to defeat the action, an injunction will not lie.” High on Injunction (4th Ed.), § 373; and the following cases cited by appellant to the same effect: Pixley v. Huggins, 15 Cal. 127; Lick v. Ray, 43 Cal. 83; Roth v. Insley, 86 Cal. 134; Chase v. Treasurer, 122 Cal. 540; Rea v. Longstreet, 54 Ala. 291; Gregg v. Sanford, 65 Fed. 151; McConnaughy v. Pennoyer, 43 Fed. 339.
To apply the test in this case, suppose the appellants were in possession of the lands in controversy, and a purchaser from Hill, appellee, should bring an action of ejectment against them to recover the land, would it be necessary for them to adduce evidence t® defeat a recovery? Certainly not. Plaintiffs in actions of ejectment or other real actions can recover only upon the strength of their own titles, and not upon the weakness of their adversary’s. For possession is always prima facie' evidence of title, and a party cannot be deprived of his possession by any person but the rightful owner, who has the jus possessionis. The defendant, therefore, need not show any title in himself until the plaintiff has shown some right to disturb his possession. Dawson v. Parham, 47 Ark. 215, 218; Apel v. Kelsey, 47 Ark. 413, 418; Nix v. Pfeiffer, 73 Ark. 199, 201; Beardsley v. Hill, 77 Ark. 246.
This he could not do in the case supposed; for to do so he must at least show that his grantor held prima facie evidence of title, that is to say, the deed under which he holds is prima facie evidence of title. This he could not do; and the appellants would not be required to adduce any evidence of title unless other and independent evidence of right of possession should be adduced by the plaintiff.
So, upon the whole case, we conclude that the decree of the court should be affirmed, and it is so ordered.
