123 Ark. 537 | Ark. | 1916
This suit was instituted in the chancery court by W. H. Laws against W. H. Lightle and others to redeem from -sale for taxes the lands described in his complaint. The plaintiff did not reach his majority until the 28th day of December, 1912. This suit was commenced on the 11th day of December, 1913.
Isaac Dugan, obtained a patent to the land from the United -States in 1856 and owned the land until it was sold for taxes on June 12, 1873. J. J. Wilkins then obtained a tax title from the State and owned the land until it was sold for taxes on June 3.1, 1878. At that sale P. LaCook obtained a certificate of purchase -and assigned it to J. B. Laws and two years later obtained a tax deed from the clerk to the land. Laws and other members of his family ■paid taxes oh the land from 1878 to 1892. G. W. Laws died in 1887 leaving a widow and two sons, J. F. Laws and W. H. Laws. J. F. Laws died in October, 1890, without issue. W. H. Laws died in 'September, 1891, leaving surviving him his widow and W. H. Laws the plaintiff herein as his sole heir at law. The lands were forfeited for taxes after the death of plaintiff’s father and the defendants deraigned title from this tax sale.
It is conceded that the tax sale in the year 1878 was void. The chancellor found that the plaintiff had a right to redeem from the tax sale under which the defendants hold. It also appears from the record that a tax deed was executed to the defendants, and that thereafter certain timber was cut by them from the land. The chancellor found that the defendants were liable for the timber cut and removed from the land. A decree was entered in accordance with the opinion of the chancellor and the defendants have appealed.
There is another reason why the plaintiff should not be allowed to recover the value of the timber cut by the tax purchaser. Under the authorities above cited and other decisions of this court, the void tax title under which plaintiff and his ancestors held title to the land was sufficient interest in the land to permit him to redeem, 'But it By no means follows that such void tax title was sufficient to enable him to recover the .value of the timber cut and removed from the land. Section 7105 of Kirby’s Digest provides that, “No person shall be permitted to question the title acquired by a deed of the clerk, of the county court, without first showing that he, or the person under whom he claims title to the property had title thereto at the time of the sale, Or that title was obtained from the United States or this State after the sale.”
■ In the case of Rhea v. McWilliams, 73 Ark. 557, the court in construing this statute said, “This statute was passed for the protection of parties holding land under tax titles, and was intended to cure defects in such titles as against those having no interest in the land at the time of the sale. But, as it was passed to strengthen such titles, we do not think that it was intended to apply in case of conflicting tax titles. As to such titles, when both are invalid, the position of the defendant in possession of the land is superior to that of the plaintiff.” So under the rule there announced the plaintiff could not use this statute for the purpose of recovering the value of the timber cut from the land by the defendants. It by no means follows, however, that the plaintiff is not entitled to a writ of assistance. If he was not entitled to this relief, the statute could have no effect whatever.
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It follows that the court erred in allowing plaintiff to recover the value of the timber cut from the land and for this error the decree will be reversed and the cause remanded with directions to enter a decree in accordance with this opinion.