121 Ark. 621 | Ark. | 1916
This litigation involes a tract of land which had been owned by a negro named George Bull. Some time before his death Bull gave a mortgage on this land, which was later foreclosed in the Perry County Chancery ¡Court, and at the sale under this decree appellee became the purchaser aud received a commissioner’s deed dated April 3, 1906. This foreclosure suit was begun in 1903, and the parties 'defendant were the children of George Bull.
Appellant purchased 'the land at a sale for the taxes of 1901, and received a tax deed dated 'September 9,1904, based on this sale, and he undertook to show that he immediately entered into and retained possession of the land until March, 1909, at which time his tenant was forcibly dispossessed.
The record of the tax sale under which appellant claims was introduced in evidence, and the heading or caption of the record showing the list of lands returned delinquent reads as follows:
“List of land and town lots returned for nonpayment of taxes for the year 1901 in Perry County, Arkansas, and sold June 9,1902.”
The clerk’s certificate showing publication of the delinquent notice reads as follows:
“And I further certify 'that the same was duly and legally advertised in the Perryville News, a weekly newspaper printed and published, and having a bona fide circulation in Perry County, towit: May......, 1902, and May......, 1902, the last insertion being more than two full weeks before the day of sale, and both insertions being between the second Monday in May and the second Monday in June, 1902.”
In construing section 7085 of Kirby’s Digest in the ease of Walter v. Swaim, 107 Ark. 242, we said (to quote the syllabus):
“The requirement in Kirby’s Digest, section 7085, that the list of lands delinquent for taxes, shall be published ‘weekly .for two weeks between the second Monday in May and the second Monday in June in each year,’ is not met by a publication, the first insertion of which is on May 22, and the last on June 5, because these two dates are not weekly in succession, .and there being no affirmative showing that there was an intermediate publication.”
Appellant insists, however, that even though the tax sale was invalid, he has title by virtue of his possession under his tax deed, and the correctness of his contention is, we think, the controlling question in the case. The finding of the 'chancellor was.adverse to appellant’s contention, and we can not say that finding is contrary to the preponderance of the evidence.
During the pendency of the foreclosure suit and for some time thereafter the Greenville Stave Company operated a mill on this land and cut the timber thereon, but this possession was permitted by the parties to the foreclosure proceeding under an agreement that if the Bull heirs wished to pay off the mortgage sought to be foreclosed, the money received from the timber might be used for that purpose, but it does not appear what became of this money.
Appellant testified that he received rent for the years 1904 to and including'1908 on a part of the old Bull farm, but it appears that the rent paid appellant was paid by one of the Bull heirs who was in possession of a tract of land which had 'also been owned by his father adjoining the land in question.
The evidence on the part of the appellee is to the • effect that he took possession of the land in 1905; that one Renben Dozier bad rented a part of the land from one of George Bull’s heirs under an agreement that the rents were to be held and turned over to the successful party in the Chancery court, and that appellee took possession of the land When he received Ms deed, and that he thereafter rented the land to one of the Bull heirs for a third of the cotton, and latter rented it to one Surratt; that the Bulls owned another tract of land adjoining the land in controversy, and when he went to put a division fence between tMs land and the other tract appellant notified him not to put up the fence, but that he did put the fence up and appellant .cut it down. There was other testimony corroborating appellee, and the effect of his evidence is that he had adverse and continuous possession of the land from the date of Ms deed in 1906 to the beginning of this litigation.
Appellant’s evidence does show the receipt of .certain rents, yet these rents were paid by one of the Bull heirs who was in possession of an adjoining tract, and the evidence does not definitely show the extent or boundary of the land so occupied.
In the case of Crill v. Hudson, 71 Ark. 390, it was decided that possession of a part of a tract of land sold for taxes under color of 'title for the whole, for the requisite period of time gives title to the tract by limitation, where the owner is not in actual possession of any part.
In the case of Woolfolk v. Buckner, 67 Ark. 411, it was decided (to quote the syllabus):
“A purchaser of laud under a void tax title will acquire title, under the two years’ statute of limitation, only to so much of the land as he has held in his actual and adverse possession for the requisite period, * * * the constructive possession of so much of the land as is unoccupied being in the holder of the legal title.”
