199 S.W.2d 971 | Ark. | 1947
The 200 acre tract of land here in litigation forfeited and was sold to the State for the 1941 taxes due thereon. In due time, not having been redeemed, it was certified to the State. March 13, 1945, the State filed suit to confirm its title to this and other lands in Fulton county. Two weeks later the State sold and conveyed said tract to appellants. May 25, 1945, appellee intervened in the State's suit to confirm, alleging that he was the owner and that the tax forfeiture and sale to the State were void for certain reasons. He tendered $58.21 into court, which he alleged was the correct amount to redeem from said sale. He set up the conveyance by the State to appellants, asserted its invalidity, asked that the deed to them be canceled as a cloud on his title, and that title to said land be confirmed in him.
Appellants were made parties and answered with a general denial that appellee had not been seized or possessed of said lands for the past two years; that it had been lying out for the past fifteen years; and that appellee had not paid the taxes for the past five years. They prayed that the title to the lands be confirmed in them, but if not they be reimbursed in the sum of $321 paid by them to the State for their deed.
Trial resulted in a decree for appellee which canceled the State's deed to appellants and quieted and confirmed the title to said lands in appellee.
On this appeal, appellants do not contend that the court erred in holding the forfeiture and sale to the State were void. This holding appears to be conceded. *1075
The only contention in the main brief seems to be that, since the State's deed was issued to them prior to appellee's intervention in the confirmation suit, he was neither in the actual nor constructive possession of said lands and could not prevail. They cite Schmeltzer v. Scheid,
We think appellants are misapplying the holding in that case. It is undisputed that appellee was the owner of the lands at the time of forfeiture and sale, but that they were not in his actual physical. It is not possession contended that appellants have had, for two years or any other time, the actual, physical possession thereof. We said in the recent case of Johnson v. Johnson,
In Hixon v. Fulks, ante, p. 204,
Affirmed.