121 Ark. 33 | Ark. | 1915
Lead Opinion
(after stating the facts). Appellant contends that the .appellee failed to show sufficient title in himself to warrant the relief granted ias against his void tax deed, which was prima facie evidence of title.
In a suit to quiet title the plaintiff must recover upon the strength of his own title, and not upon the weakness of (the title of his adversary. Carpenter v. Smith, 76 Ark. 447; Wilson v. Rogers, 97 Ark. 369; Kirby’s Digest, § 7105; Osceola Land Co. v. Chicago Mill & Lumber Co., 84 Ark. 8; Rhea v. McWilliams, 73 Ark. 557.
It.is also true that the payment of taxes under color of title for seven consecutive years upon wild and unoccu-. pied lands, confers title by limitation. Section 5057, Kirby’s Digest; Towsen v. Denson, 74 Ark. 302; Van Etten v. Daugherty, 83 Ark. 534; Wilson v. Rogers, 97 Ark. 371; Paragould Abstract Co. v. Coffman, 100 Ark. 582.
There is no question but that the conveyances of the land from Ida and Jno. Bell in July, 1901, down to and including the deed from Maxey to Snyder, appellee, on April 6,1911, constituted color of title, nor that the lands are wild .and unoccupied. It is strongly urged, however, that there is not sufficient testimony to support the court’s finding that the taxes were paid by the appellee and his grantors for the seven consecutive years and no testimony showing by whom they were paid for the year 1906. The lands were not returned delinquent and sold for the-non-payment of taxes for the year 1906 and the record shows the taxes for 1905, before, and 1907, afterward, to have been paid by Oliver O. Miller, who was named in the real estate tax book for the year 1906 as the owner. There was .also the notation on said tax book by the collector in the column “When paid,” showing the taxes on the tract of land to have been paid “4/10,” — fourth month, 10th day, that year.
We think this is sufficient evidence in view of the further showing that the lands were not returned delinquent nor sold for taxes that year, to support the court’s finding that the taxes were paid. 2 Blackwell on Tax Titles, 837; 37 Cyc. 1167.
The law requires the clerk in making the tax hooks to set down each separate tract of real property opposite the name of the owner and that the tax books shall be a public record and preserved as other records of the county, in the office of the county clerk. Sections 7018, 7028, Kirby’s Digest.
The owner of the lands is required to pay the taxes thereon :and the tax books show the name of Oliver O. Miller as owner, who had a deed therefor and had paid the taxes thereon for the year 1905 and 1907, tho inference of fact arises, the taxes having been paid for 1906, that they were paid by him, and is sufficient to support the court’s finding without regard to, the presumption of law that the taxes were paid by the owner. Appellee alleged in his complaint that he and his grantors under whom he claimed title to the lands had paid the taxes thereon for more than seven years prior to the tax forfeiture complained of, which was a sufficient allegation to permit him to prove the payment of taxes under color of title for the seven consecutive years, and having proved such payment, to the relief granted. We find no prejudicial error in the record and the judgment is affirmed.
Dissenting Opinion
Smith, J.,
(dissenting). It 'appears from the statement cf facts in the majority opinion that appellee Snyder bought the land from Maxey, who bought from Arissa Miller, who bought from Bernard, who bought from Oliver O. Miller, who is said to have paid the taxes for the year 1906. Oliver Miller purchased from Nathan Miller in January, 1905. No one testified that Oliver Miller had lost 'the tax receipt for the year 1906, or that he ever had one. Appellee did testify that when he purchased the land from Maxey he called on him, for his abstract 'and all his papers, 'and that when this suit was brought his attorney told him it would be necessary for him to get up his old deeds'and tax receipts, and that he tried to locate Maxey for this purpose. That .at the time of his purchase Maxey was a resident of the State of Kansas, and the people who had owned the land for ten or fifteen years immediately before that time were also residents of Kansas. Upon this subject appellee further testified: “My recollection is that Mr. Maxey had 'all the deeds and tax receipts that had been añade to and issued upon this land for ten or eleven years, before I bought from him, and they were the deeds and title papers he was looking for and had lost. I know Mr. Maxey made a earefnl and diligent search for this purpose, for I was with him part of the time. He looked through his trunk and everything else in his room where valuable .papers were most likely to be kept. I did not have in my possession any of the tax receipts showing who paid the taxes on the lands hereinbefore described for the years 1895 to 1911. Mr. Maxey lost the tax receipts to these lands. ’ ’
But this evidence does not show the existence of a tax receipt for the year 1906, nor its loss. The only other proof of payment of taxes by persons in appellee’s chain of title are the circumstances set out in the majority opinion. These are that the lands were assessed on the tax books in the name of Oliver Miller for the year 1906 and that in the column of the tax books marked “-When Paid” were the figures “4/10th” and that Oliver Miller did in fact pay the taxes for the preceding and the subsequent year. Attention is called to the fact that in the column of the tax books marked “Page of Record of Receipts” appears ¡the figures “235” but that no receipt for the taxes on this land appears on that page, or any other, for that year.
The majority do not base their holding upon the finding that the evidence shows 'that Miller had lost the receipt for the taxes for the year 1906. On the contrary, the opinion is put upon the ground that the other circumstances mentioned are sufficient to support the finding that the taxes were paid by Miller. From this view I dissent. It is true the lands were assessed for taxes in the name of Oliver Miller, but no statute provides and no ease has ever held that that fact is proof of ownership, and the land was so entered on the book before the taxes were paid. Payment of the taxes in question might have 'been shown by the production of the receipt, which would, of course, he the best evidence. If the taxes had ever been paid and the receipt issued, but had been lost, this fact might have ¡been shown, or, failing to prove the payment of taxes in either of these ways, the tax book, together with the tax receipt record, could have been used for this purpose. It is highly probable that these taxes were not paid by any one for the year 1906. This is indicated by the fact that there was written opposite this tract in the column intended to show the page of the receipt record where the receipt was recorded the figures ‘ ‘ 235, ’ ’ hut no such receipt was recorded on that page nor elsewhere in the book, 'and the wrong land may have been marked paid “4-10.” The collector may have inadvertently written the figures herein set out opposite the tract of land in question when they should have been written opposite the tract en which the taxes were in fact paid. Of course, this is mere surmise, hut if these figures do show that the taxes were paid they do not show that Miller paid them. The presumption is that they were not paid by him, but were paid by the true .owner, as Miller at that time had only color of title.
But it is said that upon payment of the taxes for this year and the subsequent years this color of title ripened into title under section 5057 of Kirby’s Digest. But the fallacy of this ¡argument is that this color of title could not ripen into title under section 5057 of Kirby’s Digest until there had been seven consecutive payments of taxes, and it required payment for the year 1906 to make the necessary continuity of payments. I ¡submit that it can not be presumed that Miller paid the taxes for the year in question because of the fact that with this payment and the Subsequent payments the title was acquired under the provisions of ¡section 5057 of the Digest. Such holding builds a presumption upon a presumption. It requires us to presume that one who had only color of title at the time taxes were paid, paid them, when the presumption of the law is that, the payment was made by the true owner.
I submit that, although the majority admit the existence of this presumption, they have failed ¡to follow it in its application to the facts of this case, and have indulged a presumption to the contrary, and I therefore dissent.
