Lead Opinion
Thе husband and father of appellants, George Eickhoff, who is now dead, instituted this suit in the Pulaski Chancery Court on March 20, 1913, against appellees, to cancel their title to lots 1 and 4, block 1, Argenta, Arkansas. George Eickhoff, through whom appellants claim, based his title to said lots on tax deeds procured by him on February 15, 1913, upon presentation to the county clerk of tax certificates which had been issued to John Scott in 1894 at a tax sale for the non-рayment of taxes on said lots for 1893.
Appellees answered, attacking the validity of the tax forfeiture and sale under which the certificates of purchase were issued to John Scott, and setting up title to said lots in O. H. Winn, under quit claim deed from D. F. Scott and wife. The cause was heard by the court upon the pleadings, depositions and record evidence, upon which a decree was rendered dismissing appellants’ bill with prejudice. From the decree of dismissal, an appeal has been prosecuted to this court.
The lots in question were sold for the taxes of 1893, in 1894, and purchased by John Scott. John Scott died on September 7, 1901. His administrator assigned the certificate оf purchase to W. R. Scott ou November 1, 1901. W. R. Scott, Lottie N. Scott and Cora B. Melgner, only heirs of John Scott, deceased, conveyed said lots to D. F. Scott on November 15,1901. W. R. Scott assigned said tax certificates of purchаse to D. F. Scott on November 11,1901. D. F. Scott assigned the .tax certificates for said lots to George Eickhoff, the husband and father of appellants, on the 20th day of April, 1903. George Eickhoff then paid all the taxes on the lots from 1903 to 1912, inclusive. George Eickhoff presented his certificates of purchase to the county clerk and obtained tax deeds for them on February 15, 1913.
D. F. Scott and wife executed a quit claim deed for said lots to O. H. Winn on October 22, 1912, and Winn paid the taxes for the years 1913, 1914 and 1917. Winn thereafter conveyed an interest in the lots to Black, and Black to Carter; but Carter conveyed it back to Black and Black back to Winn. After Winn procured the quit claim deed from D. F. Scott, the lots were sold under execution against Winn and purchased by George Eickhoff. Winn subsequently redeemed the lots from the execution sale. As far as ascertainable from the abstract introduced in evidence, H. S. Ellis was the owner of said lot 1 and IT. M. Rose owner of lot 4 at the time of the forfeiture for the non-payment of taxes. There was other evidence in the case relative to attempts to pay taxes by the respective parties, touching upon the possession of the lots after the institution of the suit, and a failure of the officers to comply with the statutes concerning tax forfeitures and sales thereunder, but we deem it unnecessary to set out thоse facts as we regard them immaterial to the real issue to be determined in this case.
It is apparent from the record made in this case that appellants and appellees trace their respectivе titles to John Scott. Appellees contend that appellants’ tax title is void because the recorded delinquent list for taxes of 1893 did not contain the caption set out in section 7086 of Kirby’s Digest. It is said that the caption is аn integral part of the notice required. It is also insisted that the tax title of appellants is void because the quorum court failed to levy the municipal taxes which were assessed and extended against the lots for that year. We deem it unnecessary to discuss either reason assigned as invalidating the tax title because both appellants and appellees trace their respective titles to this common source. Appellees are not in a position to attack appellants’ tax title because they trace their title to the same source, and an attack upon appellants’ title is in effect an attack on the source оf their own title. It is true, in an adversary suit, that the plaintiff must recover on the strength of his own title and not the weakness of the defendant’s title. Knauff v. National Cooperage and Woodenware Co.,
For the error indicated, the decree is reversed and the cause remanded with directions to ascertain the amount of taxes paid on said lots by Winn for the years 1913, 1914 and 1917, with interest thereon, and to render а decree in accordance with this opinion.
Rehearing
(on rehearing). Our attention has again been called to this case by petition for rehearing. Appellee insists that he not only has title from D. F. Scott, but that he has a deed from the county clerk, based upon a certificate of purchase by A. M. Eastman upon a forfeiture for the non-payment of taxes by H. S. Ellis. It is said that this deed was made a part of the record in. this case. "We have found such а deed on pages 57 and 58 of the transcript in the record, hut it covers lot 2 in block 1 in Argenta, Arkansas. We have been unable to find a deed from the clerk to appellee, such as is suggested, lots 1 and 4. Appellee has not cited us to any page in the record before us where such a deed appears. Of course, if the deed referred to covered lots 1 and 4, then appellee would have a title independent of the cоmmon source, and, in that event, appellant necessarily would have had to recover on the strength of his own title.
Again, it is insisted that George Eickhoff acquired the tax certificates, which had been issued to John Scott, in trust t© be sоld for the benefit of himself and D. P. Scott, and that he did not acquire the certificates of purchase outright. There was a sharp conflict in the testimony of D. P. Scott and George Eickhoff in this regard. Even if it were permissible to engraft а trust on the instrument by oral evidence, it would have to be done by clear and convincing evidence. Where only two testify and their evidence is in direct conflict, and where neither witfiess had been legally impeached, it can not be said that the one upholding the affirmative has met the requirements of the rule. But the court is of the opinion that the trust contended for by appellee can not be en-grafted upon the instrument by oral evidence.
It is also contended that appellants are estopped because George Eickhoff purchased the lots under execution sale to satisfy a judgment against appellee and the redemption by appellee of the lots from the execution sale. As we understand the law, the party claiming title has a right to purchase- an outstanding title without affecting his right to assert or defend his original title. The redemption by appellee frоm the execution sale can not estop Eickhoff because he was not put to an election by the redemption. Appellee was entitled to redeem as a matter of law, and not at the election of Eickhoff.
It is also insisted that appellee is protected under the doctrine of innocent purchaser. As we understand the case, appellee knew from the record that the land had been sold to John Scott fоr the non-payment of taxes and that the certificates were outstanding in his name. The certificates were assignable and he must necessarily have taken notice of that fact. D. F. Scott succeeded to the rights of John Scott and Eickhoff procured the certificates from D. F. Scott. The record also showed that Eickhoff had paid the taxes for some nine years. Under these facts, in order for appellee to avail as an innоcent purchaser, it would have been his duty to inquire of D. F. Scott concerning the whereabouts of the tax certificates of purchase.
It is said by appellee that he placed one hundred loads of dirt on the lots, wоrth $100, after he acquired his quitclaim deed from D. F. Scott. We have re-read appellee’s original brief and find no suggestion of that fact or that he claimed anything for improvements under the Betterment Act. So far as we have been able to ascertain, appellant did not abstract any evidence showing that the dirt had been placed on the lots by appellee and this evidence was not supplied in the original brief of appellee.
After careful consideration, the court is of opinion that it did not err in its judgment of reversal. The motion for rehearing is, therefore, overruled.