| Ark. | Feb 24, 1906
(after stating the facts.) This is an appeal from a judgment of the chancery court of Chicot County declaring the title to certain lands in that county to be in S. S. Bissell, and quieting his title thereto against the claims of the defendant, W. T. Hardie. Bissell claims title to the land under a chain of conveyances extending back to the United States, while Hardie claims title under a tax sale and under a sale in pursuance to a decree agaiqst the land for overdue taxes.
The evidence shows that this land was conveyed to Bissell by Valentine and A. L. Morgan in 1895, and that the Morgans held by mesne conveyances from the Government. This action was commenced by the railway company, which claimed the lands, and which alleged that they were wild, unimproved and unoccupied. Hardie and Bissell afterwards became parties to the action, and set up title in themselves, but neither of them denied the allegations in the complaint of the railway company that the lands were wild and unoccupied. The recitals in the decree show that the chancellor based his judgment in favor of Bissell, not only on the fact that Bissell had title by these conveyances,, but on the further fact, found by the chancellor, that Bissell under this claim and color of title had paid taxes continuously for more than seven years next before the bringing of the suit, three of the payments being subsequent to the act of 1899 above referred to.
Now, there is an'order of the chancery court found in the transcript which sets out the evidence on which the case was submitted to the chancellor. This order immediately precedes the formal decree, and seems to have been intended as a part of that decree. It recites that Bissell introduced, with other evidence, “tax receipts from 1895 to 1902, inclusive, and record of tax payments prior to 1895.” It further recites that Hardie, in addition to other evidence, introduced “the tax receipt record from 1869 to 1903 inclusive.”
.Now, neither a copy of these tax receipts nor a copy of the tax receipt record is found in the transcript. It is true that there is copied in the record what purports to be a report of the clerk as to payments of taxes on the land in controversy from 1882 to 1903 inclusive. The clerk certifies that this report contains “a true, correct and perfect copy of the tax payments” for the years therein mentioned as the same appears on the books of his office. This report may and probably does contain a correct statement of the facts in regard to the payment of -taxes as shown by the records in the clerk’s office. But, being only a report of what the clerk finds in the record, and not a certified copy of the record itself, it is not competent evidence of the contents of such record, and it is not the evidence which the decree or the order referred to recites was before the chancellor, and upon which he based his findings and decree.
If the evidence had shown that both of these parties paid taxes on this land the same year, then the first payment thereof would have been the legal payment of the taxes, for the collector had no right to accept two payments; but, as before stated, the tax receipts and tax receipt record, on which it seems the chancellor based his findings, are not before us, and we can not, in the absence of that evidence, review his findings of fact based thereon.
Counsel for appellant has filed an affidavit of the deputy clerk tending to show that no tax receipts were read in evidence, while the appellee has filed a certificate of the chancellor which, appellee claims, shows to the contrary. But this affidavit and certificate are both matters outside of the record, and can not be considered on this appeal. We have to look to the record alone.; and as the record recites that tax receipts and also the record of tax receipts were read in evidence, and as these are not found in the transcript here, we must presume that the chancery court had before it evidence which the transcript here does not contain.
In a case where the record showed that it did not contain all the evidence, this court held that it would presume that the evidence was sufficient to sustain the finding and decree of the chancellor. This presumption in favor of the decree,- the court said, "prevails to the extent of curing every defect in the allegations of the pleadings which by reasonable intendment may be considered as having been proved.” Hershy v. Baer, 45 Ark. 240" date_filed="1885-05-15" court="Ark." case_name="Hershy v. Baer">45 Ark. 240.
Now, in the condition of the record before us we must take it as true that Bissell introduced tax receipts and evidence showing a continuous payment of taxes on the land in controversy by him for over seven years next before the commencement of this action, and that these payments of taxes were made under color of title and claim of ownership adverse to that of Hardie.
As there was no denial of the allegation in the complaint that these lands were wild and unimproved, the continuous pay.ment of taxes for the period named in -the statute under color and chain of title thereto was sufficient to uphold the finding of the chancellor that plaintiff was the owner of the lands. Towson v. Denson, 74 Ark. 303.
The contention of appellant that this statute does not apply for the reason that the land was forfeited to the State for nonpayment of taxes in 1894, and that the State was the owner of the land from then until 1899, 's of no force, for the reason that the State afterwards conveyed its title to the railroad company, and that company conveyed it to Bissell. If the forfeiture to the State was valid, then Bissell is the owner by virtue of that title. On the other hand, if this forfeiture to the State was invalid, then the title was never in the State, and the mere fact that the State claimed the land did not prevent the statute from running against the real owner.
If we treat the answer of Hardie as a counterclaim, no advantage of the fact can be taken that no reply was filed thereto. No judgment was asked for want of a reply. The parties treated the matters alleged therein as controverted, and we must treat them in the same way.
There are other points discussed; but, as the view we take of the record requires an affirmance, it is unnecessary to discuss them.
Judgment affirmed.