Kirby, J., (after stating the facts). Appellee’s right to maintain the action was based upon his ownership of the land, which was denied by the answer, and the court erred in not giving said instruction requested by appellant and in giving said instruction requested by appellee. Appellee deraigned his title through a grant from the State, of date December 16, 1873, and appellant showed the lands had been purchased from the State by Thos. J. Jarnigan, and a certificate issued therefor in 1862. That Jarnigan conveyed the lands to others and that they had been finally conveyed to her father, from whom she -and the other defendants inherited. A complete chain of title was not shown.
(1) Appellee’s right to recover, however, rested upon the strength of his own title, since he had no possession of the lands from which the timber was taken. Price v. Greer, 76 Ark. 426. The land was purchased from the State by Jarnigan in 1862, and certificate issued therefor showing such fact. Jarnigan thereby acquired the equitable title to the lands and thereafter the State was but a naked trustee of the legal title, charged with the simple duty to issue him a patent at the proper time, and could not lawfully sell it to another. Hibben v. Malone, 85 Ark. 587; Coleman v. Hill, 44 Ark. 452.
(2) The purchaser under the certificate from the State, and his successors could protect his right to the land by an action of ejectment or sell and convey the same. Alexander v. McCauley, 22 Ark. 553; Coleman v. Hill, 44 Ark. 452; Smithee v. Mosely, 31 Ark. 426; Brummett v. Pearle, 36 Ark. 472; Chowning v. Stanfield, 49 Ark. 87; Kirby’s Digest, § 2741.
(3) The owner of the equitable title to the land had the right to the timber growing thereon and could not be compelled to pay damages for removing same, to the owner merely of the naked legal title, and had the right in a suit at law to set up the fact as a defense to such action. There is some testimony tending to show that appellee’s grantors had paid the taxes upon the lands which were wild and unimproved for more than seven years, under color of title, three of the payments being after the approval of the statute of 1899. Kirby’s Digest, § 5057. No title was acquired thereby, however, although a'witness stated that an examination of the tax books disclosed that W. C. Sheldon paid the taxes from 1884 until 1904. ¥m. C. Sheldon, the grantee trustee in the deed from the State, died in 1896, and the taxes could not, of course, have been paid by ’him thereafter, and if they were paid by.W. ,C. Sheldon, Jr., a devisee in the will and one of the executors thereof, who made the deed conveying the lands to the grantors of 'Warnock, he had no color -of title thereto at the time of paying the taxes after the death of said W. C. Sheldon, for the will contains no description of any lands and did not constitute color of title. The court erred, therefore, in instructing the jury that they should render a verdict for appellee, if they found from a preponderance of the testimony that appellants removed the timber from the land without requiring it to first find that the land belonged to him.
For the error in refusing said instruction the judgment is reversed and the cause remanded for a new trial.