| Ark. | Mar 15, 1902
(after stating the facts.) The sale on account of the nonpayment of taxes, having been made on a day not authorized by law, is void. Allen v. Ozark Land Company, 55 Ark. 549" date_filed="1892-03-12" court="Ark." case_name="Allen v. Ozark Land Co.">55 Ark. 549. The title to the land in controversy, then, depends upon the legal effect of the two deeds executed by Sawyer, respectively, to Hutchinson and Sigerson. Which of these deeds conveyed the title ?
Section 728 of Sandels & Hill’s Digest is as follows: “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; or against any creditor of the person executing such deed, bond or instrument, obtaining a judgment or decree, which by law may be a lien upon such real estate, unless such deed, bond, or instrument, duly executed and acknowledged, or approved, as jis or may be required by law, 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.” From this section it appears that the title to land does not absolutely and irrevocably vest in the grantee by virtue of the execution of a deed by the owner. As against a subsequent purchaser of the land for a valuable consideration without actual" notice, the title does not absolutely vest in the first grantee, if his deed has not been filed for record. If it did, how could the deed be invalid as to the subsequent purchaser, and,if invalidas to the subsequent purchaser,how could it absolutely vest title in the grantee therein? The only rational solution of this question, it seems to us, is that the absolute title rests with the grantor and his heirs in abeyance, to vest irrevocably only upon the filing of the deed for record in the proper office. 1 Warv. Vendors, p. 542, § 16; Webb, Record of Title, § 168; 2 Sugden, Vendors, *978.
This conclusion is sustained by Youngblood v. Vastine, 46 Mo. 239" date_filed="1870-03-15" court="Mo." case_name="Youngblood v. Vastine">46 Mo. 239. In that case the facts were as follows: “Sarah G. Wright, by herself and her trustee, on the 26th day of July, 1859, executed to B. J. Xaupi, in trust, to secure the payment of a promissory note of the same date for $3,700, given to Joseph Tuley, then living, a deed of certain real estate, her separate property, * * * which deed was not put upon record until the 19th of October, 1866. The said Joseph Tuley and Sarah G. Wright died in 1860 and 1861, and on the first of October, 1865, D. Robert Barclay, as trustee of Mrs. Ann A. Macdonald, and with her funds, purchased said property of the heirs of Sarah G. Wright, and received a warranty deed of the same, which was recorded April 28, 1866. * * * Neither Barclay nor Mrs. Macdonald had any knowledge of the trust deed to Xar:pi; that the records were examined before the purchase to see if there was any incumbrances upon the property; that a full consideration was paid for it; that the estate of Mrs. Wright had been settled by the public administrator, and that all debts presented had been paid, but this note was not among them. This suit was brought by the administrator of Tuley to foreclose his trust deed, and the contest arises in consequence of the failure on the part of Naupi, to whom it was made, to place it upon record.” Under a statute similar to ours, the court held that the heirs of Wright, on her death, became the apparent owners of the legal title, and that the duly recorded conveyance by them of the same estate to Barclay, as trustee, carried the title as against Saupi, and said: “It would be more rational to say that the law controls the manner in which rights of property are acquired, and that it will not favor any mode of acquirement that shall encourage fraud. Thus purchasers are required to spread upon record the evidence of their ownership; and if others suffer from their neglect, the law will not recognize such ownership. Or, in using the language of the law of tenures, we might perhaps say that in a conveyance the absolute title rests with the grantor and his heirs in abeyance, to vest irrevocably only upon the record of the deed, and that it will vest in the first grantee in condition to receive the grant, who shall so place it upon record.” See Memphis Land & Timber Co. v. Ford, 58 Fed. Rep. 455.
In the case at bar the deeds to Hutchinson and Sigerson were executed by Sawyer on the same day. The evidence does not show which was first delivered, or that either grantee had notice at the time he bought of the purchase by the other. Hutchinson’s deed was first filed for record. At that time the land was wild and unoccupied, and had never been in the actual possession of anyone. According to our theory, the title to it became absolute, and vested irrevocably, when Hutchinson’s deed was filed for record. In whom did it become absolute and irrevocable ? Certainly, in Hutchinson. He thereby acquired a title superior to that of Sigerson and the right to hold the land, the registration of the deed becoming in this manner a substitute for livery of seizin.
But the chancery court found that the Hutchinson claim was stale. If so, the Sigerson claim was equally stale. The land was wild and unoccupied, and remained so until a short time before the commencement of this action, when plaintiff, holding the Hutchinson title, promptly asserted his rights. Until there was an interference with the possession, there was no occasion for resorting to legal remedies. It is true that Doherty and hi$. grantors for several years paid taxes on the land, but that gave them no right to or interest in the land. If they paid them under the belief the land was their property, the defendant, Doherty, has the right to subject the land to sale for reimbursement; and he is also entitled to recover the value of the improvements made by Mm in good faith and under the belief he was the owner of the land.
The decree of the chancery court is reversed, and the cause is remanded, with instructions to the court to enter a decree in accordance with this opinion.