65 Ark. 595 | Ark. | 1898
Lead Opinion
(after stating the facts). It may be conceded that the certified copy of the original clerk’s certificate of lands forfeited to the state for the non-payment of taxes made by the state land commissioner, which he states was made from the original on file in his office, was properly admitted in evidence, and that it was sufficient to show prima facie title in the state to the lands in controversy. Still, under the facts of this case, that would not enable the state to maintain this action. For it is shown by the uncontradicted proof that there was no certificate attached to the record of advertisement for the sale of the lands showing its publication, as required by Sand. & EL Dig., § 6606. Such a certificate was attached, but it appears that it was done long after the sale occurred, and long after the one who was clerk before and at the time of the sale had gone out of office, and the certificate that appears of record was made in his name and signed by his deputy, Miller, who was clerk at the time the certificate was attached. While the record of publication and the certificate thereof is made evidence of the facts in said list and certificate contained, and while said facts can not be controverted or supplemented by evidence aliunde, it is perfectly legitimate to show that what purports to be the record is supposititious, and that there was in fact none in existence.
As there was no record of the publication of these lands for sale, and no certificate thereof, according to the requirements of Sand. & H. Dig., § 6606, said sale was absolutely void, and the state acquired no title thereunder. Martin v. Allard, 55 Ark. 218.
Now, the statute under consideration only gives the right of action to the owner. Sand. & H. Dig., § 3895. The state in this case, it appears, was not only not the owner, but did not have either the actual or constructive possession of the land. Under the statute of some states, even a void tax title draws after it constructive possession of unoccupied land. But such is not our law. Gates v. Kelsey, 57 Ark. 523; Woolfork v. Buckner, 60 id. 163.
When the sovereign assumes the attitude of a litigant, in the absence of some statutory provisions to the contrary, she is subject to the same rules and principles as apply to other litigants ‘who invoke the aid of the courts and the processes of the law to enforce their rights or redress their wrongs.
This court has repeatedly held that, in order to entitle one to maintain an action of trespass to realty, he must have either the actual or constructive possession thereof. He must have the legal title to, or be in the actual possession of, the land. Ledbetter v. Fitzgerald, 1 Ark. 448; Wilson v. Bushnell, 1 id. 470; Smith v. Yell, 8 Ark. 470; Brock v. Smith, 14 id. 433; McKinney v. Demby, 44 id. 74. See also Merrick v. Britton, 26 id. 505; Gunsolus v. Lormer, 12 N. W. (Wis.) 62; Johnson v. Elwood, 53 N. Y. 432; Thompson v. Burhans, 61 N. Y. 67; and other cases cited in appellant’s brief from other states are instructive.
This statute does not broaden that doctrine. On the contrary, if anything, it nan'ows and restricts it by giving the relief provided to the owner. It requires, according to our decisions, the legal title to put one in the constructive possession of land. See Arkansas cases cited supra. We are of the opinion therefore that, in order to maintain the present action, the state should be required to show that she is the owner of the land upon which the alleged trespass occurred. If she were permitted to maintain the action upon a mere prima facie title, what would hinder the true owner from also maintaining th? action, and thus subjecting the trespasser to two actions and a double recovery for the one wrong?
The state having failed to show that she is the owner of the land, it follows that the court erred in its declarations of law. The judgment is therefore reversed, and the cause is remanded for new trial.
Dissenting Opinion
(dissenting.) This is an action by the state against the defendants, Taylor and Routh, in the Greene circuit court, for cutting and removing timber from the lands in the complaint mentioned as the lands of the state, under the provisions of chapter 85 of Sand. & H. Dig.; the damages being laid at double the value of the timber alleged therein to have been cut and removed as aforesaid.
The state claims title by a tax forfeiture and sale for the taxes of 1891, made in the year 1892. The plaintiff exhibited with her complaint a certificate of the clerk of Greene county showing the said lands to have been struck off to the state at said tax sale, and also the certificate of the commissioner of state lands, showing the lands in controversy to be the lands so certified to the state, and also, in both instances that the certificates were of record.
The defendants answered, merely denying taking the timber and ties as alleged, and also denying title in the plaintiff. Evidence, in addition to the copies of the records, was introduced by the state as to the cutting and removal of the timber and ties by the defendants and the value thereof.
The defendants saved exceptions to the introduction in evidence of the copy of the records in the office of the commissioner of state lands, and then introduced in evidence the record of the list and notice of the sale of lands in Greene county, in 1892, for the taxes of 1891, showing the lands described in plaintiff’s complaint advertised for sale as delinquent for the taxes of 1891 in three separate tracts, to which record was attached a certificate showing the publication of said notice and list on May 12, 1892, and May 19, 1892, the first insertion being 30 days before June 8, 1892, which was the date of sale. This certificate was dated May 12, 1892, and signed T. B. Kitchens, clerk, by J. R. Miller, D. C. Defendants also introduced the record of lands of Greene county sold to the state in 1892 for the taxes of 1891, showing a sale of the lands mentioned in plaintiff’s complaint in three tracts for the taxes of 1891 and penalty, together with' the following charged against each tract as costs of sale, to-wit: Clerk’s fees, 25 cents; advertising, 25 cents; and sheriff’s fees, 10 cents, — aggregating-60 cents, some or all of which they claim to be overcharges. They also read in evidence the deposition of C. W. Stedman (deputy of Miller who succeeded Kitchens as clerk of said county) who had not served at all under Kitchens, showing that, at the instance of Miller, he himself made out or signed the certificate of the notice of sale, Miller saying at the time that it had been overlooked.
Without going into an inquiry as. to whether or not any of these defects, or all of them, had the effect of invalidating the tax sale and forfeiture to the state, we address ourselves to the task of ascertaining whether or not a wilful trespasser, claiming neither title nor light of possession, is permitted to allege and show defects in a plaintiff’s title which is good on its face, and therefore makes a prima facie case for him; and, secondly, whether such a trespasser is permitted to show a defect in the state’s tax title, good on its face, by testimony showing the omission or neglect of officers in the proceedings anterior to the sale.
The court decided in Cairo & F. R. Co. v. Parks, 32 Ark. 131, that section 5206, Gantt’s Digest, cut off all defenses against a tax deed except the few therein named; and that, in so far, the section was unconstitutional, upon the ground that the deed, except in the respects named, was made conclusive evidence. Subsequently the legislature made changes in corresponding sections of our revenue [aws, by making the recitals in deeds prima facie evidence only; and also in giving the right and privilege to him who was the owner at the time of the sale, or who had become the owner by purchase or otherwise from the state or federal government, or one holding under the owner (but to no others), to contest the tax title by showing that he had in fact paid the taxes, and through mistake of the officers the same were sold notwithstanding such payments; or that the officers selling the same- had been guilty of fraud, or fraud in the purchaser. Being already privileged to show that his land was not subject to the tax, these provisions were supposed to cover any meritorious defense which an owner might have against the forfeiture and sale of his lands, and hence, while all decisions subsequent to the one cited refer to it, yet they all hold the amended statute (see sections 6623, 6624 and 6625, Sand. & H. Dig.), as cutting off only defenses on the ground of mere irregularities not mentioned in their notices, and hence, with that construction upon them, the present sections are not unconstitutional in any respect. Radcliffe v. Scruggs, 46 Ark. 96; Townsend v. Martin, 55 Ark. 192.
While this court'has gone to the full extent of permitting attacks to be made on tax deeds, yet no case is found where this right is given at all to any one except the owner or one holding and claiming under him, for he is the person named in the acts as the person who will be permitted to make these attacks. This being the state of the law, can it be said that a wilful trespasser can defend at all 1 He surely has no merit in any defenses he may make, and it is only because of the meritoriousness of any defense that the strict rule of the statute has been modified by the courts.
In ordinary suits in ejectment, notwithstanding the old rule that a plaintiff must rely upon the strength of his own title, and not upon the weakness of that of his adversary, yet the rule has been growing more and more relaxed, so that, in the modern state of the law, it is a mooted question whether a wilful trespasser will be allowed to contradict a prima facie title, because of the fact that, however successful he may be in showing the plaintiff's title is not the better, he can never show that he has any. But it is unnecessary to discuss this phase of the question.
If the defendant trespasser desires to protect himself from claims for damages from two claimants, it is quite easy for him to have the owner made a party to the suit, and indeed the trial court should have done this, even without his motion.