194 S.W.2d 878 | Ark. | 1946
J. H. Robinette sued Clarence Day and, J. E. Loveless April 13, 1945, claiming to be the owner of forty acres described in the complaint. They asked that deeds of the defendant be canceled. Robinette answered that he "Had had and [was] entitled to possession . . . from June 13, 1932, and has paid taxes on said land, or had the only right to pay same," etc.
In the decree there were findings that Robinette purchased at the collector's sale in June, 1932, for nonpayment of 1931 state and county taxes, but the sale was void for want of power.
It was then stated that the Federal Land Bank of St. Louis was given a valid mortgage on the property in 1924. Default in the secured debt having occurred, there was foreclosure November 25, 1936. A commissioner's deed was issued to the Bank (purchaser) March 22, 1937. Through various conveyances the land again came to appellees (defendants below, whose chain of title antedates the tax sale) January 20, 1943.
Ah express finding is that Robinette had never been in actual possession of any part of the property. It also appears from the decree that within the time allowed *183 for redemption, Robinette transferred his certificate of purchase, and subsequently he did not pay any taxes or make improvements.
Appellant's first purpose is to have us strike transcript pages 29 to 70, on the ground that the matter is irrelevant. If the content is irrelevant, no harm can be done by overruling the motion: but, as a matter of fact, the parties stipulated that each should have the right to file copies of any deeds "or other documentary evidence showing the chain of title. . . ." In the absence of more restrictive language in the agreement, we think the litigants were at liberty to introduce such records as might reasonably bear upon the controversy; hence the contention that pages 29 to 70 should be disregarded must be determined against appellant.
The second point argued as error is the Court's failure to require appellees to comply with 4663 of Pope's Digest by filing an affidavit that they had tendered reimbursement of taxes and the value of improvements. Robinette testified that he transferred his tax certificate to Mrs. C. A. Watkins, and the Clerk's deed was made to her. Mrs. Watkins sold to appellant's sister, Mrs. G. W. Adkisson, and appellant then paid $200 for a deed from his sister and notified Loveless to vacate. This notice was served by the Sheriff July 6, 1943.
Evidence preponderates in favor of the Chancellor's finding that neither Robinette nor his predecessors in title had been in actual possession, nor had improvements of any kind been made. The land was used for pasturage; and, while there is some conflict in the testimony regarding fences, appellees insisted it was enclosed. If appellant's cattle used the area, this — according to appellees, version — occurred when fencing was down. When appellant gave notice, it was ignored; for, say appellees, they were in possession, and were not being materially inconvenienced.
Attention is called to Reynolds v. Plants,
We think the holdings have been misconstrued. In Reynolds v. Plants a general demurrer was filed, and later a motion to dismiss. Mr. Justice Donham, who wrote the Court's opinion, said it was not clear whether the order of dismissal was based upon action of the Court in sustaining the demurrer or in granting the motion. (p. 118). He then said that ". . . if the trial court sustained the motion to dismiss for failure to file the affidavit of tender of taxes and value of improvements, [it] was in error"; and in Lea v. Lewis,
Testimony is not Substantially abstracted. In consequence we are unable to determine some of the questions discussed.
The sale was not confirmed. Appellant thinks he is protected by Act 142 of 1935. However, it is not disputed that the delinquent sale was held in 1932, and that Robinette, after assigning the certificate of purchase to Mrs. Watkins, dealt with his sister, (Mrs. Adkisson) who on January 6, 1936, acquired the interest now sought to be quieted, through quitclaim deed executed by C. S. Watkins.1. But Mrs. Watkins presented her certificate to the *185 Clerk March 5, 1935, and that officer's deed bears such date.2 Act 142 was repealed by Act 264 of 1937.
We are not able to determine from the abstract what issues were presented the Chancellor relating to appellee's contention that the tax sale of 1932 was void. It appears from the evidence of Mrs. Jewell Crow, Deputy County Clerk, that the Clerk did not issue his warrant authoring the Collector to collect taxes in 1932.
An early case dealing with Act 142 was Carle v. Gehl,
Robinette testified he was indebted to Mrs. Watkins, and that in selling her the certificate he was fully compensated. Mrs. Watkins did not warrant the title to Mrs. Adkisson, and Mrs. Adkisson is not a party to this suit.
The attempted purchase by Robinette occurred two years, nine months, and seven days before Act 142 was approved. The Clerk's deed was issued fifteen days before there was such a law. Appellant's argument, predicated upon Waldon v. Holland,
Since Act No. 142 was not in effect when either the certificate to Robinette or the deed to Mrs. Watkins was executed; since a preponderance of the testimony shows there were no improvements, and that Robinette received value for his purchase — this by his own admission; since the record has not been sufficiently abstracted to show why the Court was in error in determining that the sale of 1932 was void, and since possession was not the immediate issue, appellant's contentions must fail. The decree is affirmed.