| Ark. | Nov 6, 1911
(after stating the facts). The question for decision in this case is whether appellee, M. R. Coffman, acquired title to the land in controversy by limitation upon the payment of taxes for seven years under section 5057 of Kirby’s Digest, having color of title thereto.
The seven payments of taxes had been made and the seven years had expired after the purchase of said lands by said Coffman from W. T. Sharp, and their conveyance to him on August 23, 1898, and before the filing of' the suit herein on September 22, 1908.
The land was wild, unimproved and uninclosed, and his first payment of taxes thereon under his said deed was made April 10,1899, for the taxes of 1898. The Abstract Company purchased the same lands from said W. T. Sharp, appellee’s grantor, on January 16, 1905, without any actual notice of said Sharp’s deed to Coffman, which had not been recorded at that time, and filed its deed for record on January 18, 1905, long before said Coffman’s deed was recorded, and claims that his said deed was invalidated on account thereof under section 763 of Kirby’s Digest. That section provides: “No deed, bond, or instrument of writing, for the conveyance of any real estate, or by which the title thereto may be affected in law or equity, hereafter made or executed, shall be good or valid against a subsequent purchaser of such real estate for a valuable consideration, without actual notice thereof; * * * shall be filed for record in the office of the clerk and ex-officio recorder of the county where such real estate may be situated. ”
And it may be conceded that it invalidates the deed of Sharp to said Coffman, not recorded until after the record of the deed from said Sharp to the said Abstract Company; but, even so, said deed nevertheless constituted color of title, within the meaning of the said statute of limitations. And it is undisputed that the grantee therein paid the taxes upon the lands in controversy for seven yerrs after their conveyance to him by said deed and before the bringing of this suit. Also that there was no adverse entry by appellants during said time, and the lands remained wild, unimproved and uninclosed, during the whole period.
In Updegraff v. Marked Tree Lumber Company, 83 Ark. 159, this court said:
“It will be observed that the act merely declares that the person who pays the taxes on unimproved and uninclosed lands shall be deemed to be ih possession thereof if he have color of title. The statute does not undertake to fix the period of limitation, but merely declares the continuous payment of taxes under color of title to be possession, and leaves the general statute of limitations applicable thereto. The only, proviso or condition in the act is that the person who pays the taxes, before he can claim the benefits thereof, must have paid at least seven years in succession, three of which must have been since the passage of the statute. It follows from this that where lands continue to be unimproved and uninclosed, and seven successive payments of taxes have been made, the possession continues and becomes complete unless the possession be broken by adverse entry or by commencement of an action before expiration of the seven-year period from the date of the first payment. ”
By such payment of taxes under color of title, appellee acquired a valid title thereto as against appellants and all others, as has often been held by this court. Towson v. Denson, 74 Ark. 304; Updegraff v. Marked Tree Lumber Co., supra; Wyse v. Johnston, 83 Ark. 522; Price v. Greer, 89 Ark. 300" date_filed="1909-02-15" court="Ark." case_name="Price v. Greer">89 Ark. 300; Sibley v. England, 90 Ark. 420" date_filed="1909-04-26" court="Ark." case_name="Sibly v. England">90 Ark. 420; Greer v. Vaughan, 96 Ark. 524" date_filed="1910-11-21" court="Ark." case_name="Greer v. Vaughan">96 Ark. 524.
Appellee and its mortgagee knew the law, and that title could be so acquired, and they also knew that they were not paying the taxes upon the said land, and that necessarily they were being paid by some one else. Slight diligence upon their part would have discovered the condition existing long before appellee’s title was perfected under the statutes of limitations and an entry into possession or the bringing of the suit would have stopped the running of the statute in his favor. Having waited until his title by limitation ripened, they can not complain that they are now barred by the statute.
This view of the case makes it unnecessary to decide whether or not the fact that notice to the Trust Company’s abstracter, who passed upon and approved the title and knew of Coffman’s claim to the land before the loan was made, was actual notice thereof to the said Trust Company, a corporation that can act only through its agents, within the meaning of said section 763.
Appellee, having color of title and having paid the taxes upon the said land thereunder for seven successive years, three of said payments having been made after the passage of said statute and the whole of said seven years having expired before adverse entry by appellants or the bringing of this suit, perfected his title by limitation. Greer v. Vaughan, supra.
It follows that the decree of the chancery court, quieting his title as against appellants and dismissing the complaint of the Trust Company against him for foreclosure of the mortgage of the land for want of equity, was correct, and it is affirmed.