Carmical v. Arkansas Lumber Co.
152 S.W. 286
Ark.
1912
Check Treatment
Kirby, J.,

(after stating the facts). It is undisputed that the lands are unimproved and uninclosed, and have been since they were acquired by plaintiff’s ancestor from the Government; also that Ollie Carmical and Emma Drummond acquired all the title of their ancestor to the land. Neither is it contended that the lands were not forfeited to the State, as alleged, nor that the tax sales are not void. The sole question for determination is whether appellant can be barred by laches from the assertion of her claim to this land, the lumber company not having paid taxes thereon under color of title for the statutory period of seven years.

The lands were wild and unimproved and in the actual possession of no one, but necessarily in the constructive possession of the true owner all the time from their illegal forfeiture, and the owners could not be barred of their right thereto, except by limitation or by laches.

It is not disputed that the lumber company paid taxes for the first time on the lands after their purchase on March 24, 1905, and that the suit was filed on December 29, 1910, less than six years thereafter. The company, not having paid taxes for seven years under its color of title, did not acquire title thereto by limitation.

At the common law, which is in force in this State, the title to real property is not lost by abandonment, unless the abandonment is accompanied by circumstances of estoppel and limitation, and this without regard to the formality of abandonment, if it was short of a legal deed of conveyance; the title being in no wise thereby affected nor the owner thereafter prevented from re-entering and ejecting any who had entered into possession in reliance upon the abandonment, Tiedeman on Real Property, § 739.

The contention that appellant is barred by laches from asserting her title, because of the failure to pay taxes on the lands from their forfeiture to the State to the beginning of the suit, and that they had meanwhile greatly enhanced in value, is not well founded nor sufficient to support the plea of laches.

In Fordyce v. Vickers, 99 Ark. 500, the court said: “Before the doctrine of laches can be invoked, the delay of the true owner must mislead and work a disadvantage to the party making this defense,” and also “the true owner of the land can not be divested of a title thereto by the mere failure to pay taxes and the enhancement of it in value. The doctrine of laches is founded upon the principle, not only that there had been such a delay in the payment of taxes by the owner, indicating either that he considers his claim to the land worthless, or a total abandonment of his right to the property, and in the meanwhile a great enhancement in the value thereof, but also upon the ground that the party asserting a claim to it has good reason to believe that the alleged rights are worthless or have been abandoned and, acting upon such belief, has paid taxes on the lands under color of title at least the period of time named by the statute of limitations, and that because of the change of conditions during such period of delay and the enhancement of the value it would be inequitable to permit the owner to assert his title thereto. The party setting up the equitable defense of laches must show that he and those under whom he claims have paid the taxes on the land under a color of title thereto.”

In Osceola Land Co. v. Henderson, 81 Ark. 432, 100 S. W. 896, it is said: “Mere laches does not of itself bar the plaintiff. Laches in legal significance is not mere delay, but delay that works a disadvantage to another. So long as the parties are in the same condition, it matters little whether one presses a right promptly or slowly within the limits allowed by law; but when, knowing his rights, he takes no steps to enforce them until the condition of the other party has in good faith so changed that he can not be restored to his former state if the right be then enforced, delay becomes inequitable and operates as estoppel against the assertion of the right.”

In Herget v. McLeod, 102 Ark. 60, the court, folowing the rule laid down in Chancellor v. Banks, after a discussion of it and the prior decisions of the court, said: “It will thus appear that, before the plea of laches can be available to deprive the true owner of his land, it must be shown that the party claiming the same and his grantors have, prior to the commencement of the suit, paid the taxes on the land under color of title for at least seven years, the statutory period of limitation. The fact that the true owner had failed to pay the taxes on the land for a period longer than seven years will not alone bar him, but it must appear that during such period the defendant, or those under whom he claims, have previously paid the taxes thereon for at least seven years prior to the institution of the suit before the true owner can be declared barred by laches.”

There is no claim of any statement or conduct of appellants relative to the ownership of this land that would estop them from asserting their title thereto against the Arkansas Lumber Company, nor is there shown any such conduct on the part of their ancestor, through whom they acquired title, as would have estopped him from making any such claim. All statements attributed to him relating to the lands and their worthlessness were made long years before their purchase by the lumber company, and furnished no inducement for such purchase, nor were they relied on in the making of it. Such being the case, it can make no difference how greatly the lands have been enhanced in value, no improvements being made thereon by appellant, even if some of the enhancement in value be properly attributable to the expenditure of money and effort by the lumber company for the development and manufacture of the timber upon its other lands in the immediate vicinity. This suit having been brought after the purchase and before said lumber company had paid the taxes thereon, under its color of title for seven years, appellants are not barred by laches. Fordyce v. Vickers, supra; Herget v. McLeod, supra; Tatum v. Ark. Lumber Co., 103 Ark. 251.

It follows, the court erred in rendering the decree, which is reversed, and the cause remanded, with directions to enter a decree cancelling the tax deed to the lumber company as a cloud upon the title of appellants, and quieting their title, and that appellants be required to pay the taxes for 1873, 1874 and 1875, and the taxes paid by the lumber company on the lands since its purchase thereof, with 6 per cent, interest, which shall be declared and fixed as a lien against the land.