81 Ark. 296 | Ark. | 1907
First. The court did not err in overruling the motion to transfer to law. The complaint stated that plaintiff was in possession of the land, set up his title, and asked to have same quieted. This gave the chancery court jurisdiction. Lawrence v. Zimpleman, 37 Ark. 645. The court must look to the allegations of the complaint, in limine, to ascertain whether it had jurisdiction. The complaint did not affirmatively show that the defendants were in possession, as alleged in the motion to transfer.
The chancery court did not lose its jurisdiction because defendants moved to transfer to law, alleging that they were in possession. Defendants answered, alleging a tax title, and setting up adverse possession under the two years’ statute of limitation. But nothing was developed in the proof to show that the cause was not one of original equitable cognizance.
The lands, it appears from an' agreement of record', were wild and unoccupied. The appellee had the legal title. He asked to have appellants’ tax title cancelled as a cloud on his title.
Second. Appellants’ tax title was void because of the failure of the clerk of the county court to comply with section -7086 of Kirby’s Digest, as often held by this court. Martin v. Allard, 55 Ark. 218; Cooper v. Freeman Lumber Co., 61 Ark. 36; Taylor v. State, 65 Ark. 595; Logan v. East Arkansas Land Co., 68 Ark. 248; Birch v. Walworth, 79 Ark. 580.
Appellee had the right to have this title cancelled unless barred by laches or the two years’ statute of limitations set up as defenses.
Appellants contend that appellee failed to pay taxes for seven years, that there were, after the sale of the lands for taxes, three transfers of record of which appellee was affected with notice, and a great increase in the value of the land, and that these facts should bar appellee by laches from maintaining this suit. In the recent case of Jackson v. Boyd, 75 Ark. 194, we held that, “until there is an interference with possession, there is no occasion for action, and payment of taxes by another is not sufficient of itself to call for action;” also, that “the bare lapse of time will not cure defects in an invalid tax title.” We have held also that conveyances, “payment of taxes and color and claim of title are all insufficient to start the statute of limitations.” See Calloway v. Cossart, 45 Ark. 81.
In Rozell v. Chicago Mill & Lumber Co., 76 Ark. 525, we said: “If the land is wild and’unoccupied, and the delay has not prejudiced the rights of the defendants, they have no reason to object on that ground” to quieting the title of plaintiff.
Appellants, deriving their title from the void tax sale, had notice of the defects therein. They can not claim that they were injured or misled by any omissions of appellee to bring suit or pay taxes. See Black v. Baskins, 75 Ark. 382. They had notice of his title and the defects of their own. So the question is, will a failure to pay taxes for seven years bar the owner from maintaining a suit to cancel a void tax deed and other conveyances based thereon, where those acquiring the tax deed have paid the taxes continuously since their purchase for a period of five years, and where the lands since the purchase for taxes have greatly increased in value? The law in our State will divest the true owner of his title to land that has been in the actual open, continuous, exclusive and adverse possession of another for a period of seven years, and will invest the adverse occupant with the title thereto. Section 5056, Kirby’s Digest; Crease v. Lawrence, 48 Ark. 312; Jacks v. Chaffin, 34 Ark. 534; Logan v. Jelks, 34 Ark. 547; Wilson v. Spring, 38 Ark. 181.
Where the lands are wild and unincloséd, the law makes seven years’ successive payments of taxes under color of title equivalent to seven years of acutal adverse possession, and vests 'the title to süch lands in one who shows that he has paid the taxes during the period required by the statute. Section 5057, Kirby’s Digest; Towsen v. Denson, 74 Ark. 302.
Under these statutes and decisions the owner of the land, as well as the adverse claimant, knows that there is no divestiture of title unless the conditions obtain as prescribed.
While it is true that the length of time during which a party may neglect to assert his rights and not be guilty of laches varies with the peculiar circumstances of each case, and is subject to no arbitrary rule like the statute of limitations (Halstead v. Grinnan, 152 U. S. 416; Brinkley v. Willis, 22 Ark. 1), yet, in the absénce of some supervening equity calling for the application of the doctrine of laches, a court of chancery should and will by analog}' follow the law, and not divest the owner of title by lapse of time shorter than the statutory period of limitations. McGuire v. Ramsey, 9 Ark. 518; Ashley v. Rector, 20 Ark. 359-377; McGaughey v. Brown, 46 Ark. 25; Ringo v. Woodruff, 43 Ark. 469.
The owner has two years to redeem from tax sale. No statute of limitation begins to run against him until the expiration of that period, and equity, by analogy, should not start laches against him until that time, and should not bar him from the assertion of his title until seven years after the period for redemption, unless he has done something or omitted to do something more than merely to fail to pay, and thus to permit the adverse claimant to pay • the taxes. There is nothing in this record to show that appellee had acquiesced in the assertion of adverse rights by appellants. Appellee had no actual notice of appellants’ claim. Had possession been taken, appellee would have been affected with nbtice that appellants were claiming in their own right under their recorded deeds. Fargason v. Edrington, 49 Ark. 207. But such was not the case. There was nothing to put appellee on notice that appellants were claiming the land in their own right. The payment of taxes for only five years, even with a great increase in the value of the land, we do not think would justify a court of equity in depriving the true owner of the right to have his title quieted, because the payment of taxes gave appellants no right to or interest in the land; and a court of equity, as a condition precedent to the ruling sought, should, by appropriate order, see that the adverse claimant is reimbursed for the taxes paid by •him. Penrose v. Doherty, 70 Ark. 256. And, until there has been an equal or greater lapse of time than that shown by the legislative policy in the matter of limitations, a court of chancery should not divest the title of the owner by laches simply because, during his failure to pay taxes, there has been a great enhancement in the value of his land. We are of the opinion that the circumstances in this case do not entitle appellant to invoke the equitable doctrine of laches.
Third. The two years’ statute of limitations set up by appellants can not avail, for the reason that the proof does not show such occupation of or dominion over the property as is required to give title by adverse possession. The Supreme Court of Maine in Adams v. Clapp, 87 Me. 316, says: “In order to acquire title to wood-land, there must be actual use and occupation of it of such unequivocal character as will reasonably indicate to the owner visiting the premises during the statutory period that, instead of such use and occupation suggesting only occasional trespass, they unmistakably indicate and assert exclusive appropriation and ownership.”
This is the correct rule for courts and jurors to apply in determining from the facts of each particular case whether or not there is title by adverse possession, Measured by this rule, the chancellor’s finding in favor of appellee is supported by the preponderance of the evidence.'
The fact that Brown and his tenants, residents of the town of Earle, for several years cut timber from the land in controversy for firewood, rails, posts, boards, etc., to the extent of several hundred cords, and that no one except Brown and those whom he gavé permission cut the timber for the various purposes named after the tax purchase by Brown, would not of themselves constitute adverse possession. The cutting o'f the timber that was used for any one or all the purposes named was not all done upon one continuous and unbrokéñ incursion upon the land, nor by many continuous successive trespasses. The timber, in other words, was hot all cut at any one time, or continuously for á certain period. It was cut from time to time at intervals, as the occasion for it arose. The disconnected acts of cutting timber would indicate oft-repeated trespásses upon the land, but they were not sufficient in our opinion to' show such continuous and notorious occupation and dominion over the land as would indicate to the true owner an unmistákáble intention by another to own and exclusively appropriate the' land.
We see nothing in the facts of this case to differentiate it in principle from Connerly v. Dickinson, ante p. 258; Boynton v. Ashabranner, 75 Ark. 421; Driver v. Martin, 68 Ark. 551.
The decree is affirmed.