299 S.W. 1012 | Ark. | 1927
This in an action by the Union Sawmill Company against W. G. Pagan et al., in the Union Chancery Court. The plaintiff alleges that it is the owner and entitled to the southeast quarter of the southeast quarter of section 3, township 18 south, range 13 west, Union County, Arkansas, and it deraigns title from the United States Government to the State of Arkansas, and from the State, through mesne conveyances, to the plaintiff. The plaintiff alleges that the land had at all times been uninclosed and unimproved, and that it and those under whom it holds had paid the taxes regularly and consecutively for each year since 1905. The plaintiff alleged that the defendants were asserting title under a donation deed from the State to Mary McHenry, dated April 12, 1921. The plaintiff alleged that one of the defendants, W. G. Pagan, was engaged in cutting timber on the land; that Pagan was insolvent, and that, unless restrained, he would continue to cut the timber, to the *560 great damage of plaintiff. Plaintiff alleged that it had no adequate remedy at law, and prayed that Pagan be restrained from cutting the timber, and for damages in the sum of $100 for the timber already cut, and that plaintiff's title be quieted against the defendants, and that all deeds under which defendants claimed be canceled.
The defendants answered, denying all material allegations of the complaint, and set up that, on June 4, 1885, Mary McHenry obtained a donation deed from the State of Arkansas to the land mentioned in the complaint, and that she took immediate possession of the land and improved a part thereof, and had continued in the possession thereof until the present time, openly, peaceably, and adversely to all the world. It was also alleged that Pagan and his immediate predecessors in title were solvent, and that they had been damaged by the action of the plaintiff in having a restraining order issued, in the sum of $500. Defendants prayed for dissolution of the restraining order and for judgment against the plaintiff in the sum of $500, and that the record title in the plaintiff be canceled.
The cause was heard upon the pleadings, the depositions of the witnesses and record of deeds introduced by agreement of counsel, and also agreement of counsel showing that the taxes on the land in controversy had been regularly paid by the plaintiff and its predecessors in title every year since 1904, except for the year 1923. The court entered a decree dismissing the plaintiff's complaint for want of equity, and quieting title to the lands in the defendants as against the plaintiff, and dismissing the defendants' prayer for damages against the plaintiff. The plaintiff duly prosecutes this appeal.
1. The appellant proved record title to the land from the United States Government. The land was granted to and selected by the State under act of Congress approved September 4, 1841. The record of deeds shows that the State deeded the land to J. D. Hostetter, January 22, 1904, and by him, through mesne conveyances by warranty deed to various parties, the land waist *561 conveyed to the appellant on January 22, 1906. True, there was introduced in evidence at the trial of this cause a duplicate donation deed, showing that the lands were deeded by the Commissioner of State Lands to Mary McHenry, on June 4, 1885, which deed recited that the lands were forfeited to the State for the nonpayment of taxes for the year 1878. But it appears from the record of deeds in evidence that, at the time of this alleged forfeiture, the title to the land was still in the State of Arkansas. The first evidence of any conveyance from the State was the patent to J. D. Hostetter on January 27, 1904.
In Brinneman v. Scholem,
2. The next question is, did Mary McHenry and those claiming title under her to the land in controversy acquire title thereto by adverse possession thereof under the seven-year statute of limitations? A decided preponderance of the evidence — indeed, practically the undisputed testimony — shows that the tract of land in controversy is unimproved and uninclosed. This forty-acre tract is in section 3, township 18 south, range 13 west; it was embraced in the donation deed to Mary McHenry, together with the south one-half of the southwest quarter of section 2, being eighty acres, in the same township and range. It is stipulated by the parties to the record that the taxes on the lands in controversy have been paid by the appellant each and every year since 1905, with the exception of the year 1923. The lands in controversy being unimproved and uninclosed, the appellant acquired title thereto by such payment of taxes. *562
Section 6934, C. M. Digest; Fenton v. Collum,
But it is the contention of the appellees that, inasmuch as they entered on, and, for more than seven years, were in actual, open, continuous, and adverse possession of a part of the east eighty in section 2, adjoining the land in controversy, under the donation deed of 1885, this would give them title by constructive adverse possession to all of the east eighty as well as the land in controversy in section 3.
To sustain their contention the appellees cite the recent case of Moore v. McHenry,
In Moore v. McHenry, supra, we reannounced the doctrine of many former cases that, "where adverse possession is entered under color of title, the grantee in the instrument constituting color of title will be deemed in constructive possession of the entire body of land described in the instrument, if in the actual possession of any part thereof." See also Thornton v. McDonald,
In Towson v. Denson,
"When the Legislature said that, as to the taxpayer under color of title who paid taxes on unimproved and uninclosed land, such payment should legally constitute possession of such land, it is not reasonable to suppose that they meant anything different from what they declared," etc.
In Paragould Abstract Real Estate Co. v. Coffin,
"It will be observed that the act merely declares that the person who pays the taxes on unimproved and uninclosed lands shall be deemed to be in possession thereof if he have color of title. The statute does not undertake to fix the period of limitation, but merely declares the continuous payment of taxes under color of title to be possession, and leaves the general statute of limitations applicable thereto. The only proviso or condition in the act is that the person who pays the taxes, before he can claim the benefits thereof, must have paid at least seven years in succession, three of which must have been since the passage of the statute. It follows from this that, where lands continue to be unimproved and uninclosed, and seven successive payments of taxes .have been made, the possession continues and becomes complete, unless the possession be broken by adverse entry or by commencement of an action before expiration *565 of the seven-year period from the date of the first payment. By such payment of taxes under color of title appellee acquired a valid title thereto as against appellants and all others, as has often been held by this court; (citing cases)."
See also Smith v. Boynton Land Lbr. Co. supra, where we said:
"In the case of Seldon v. Dudley E. Jones Co.,
It follows therefore that, under the law applicable to the facts of this record, the appellees have no title or right to possession of the lands in controversy. The decree is therefore reversed, and the cause is remanded, with directions to grant the prayer of appellant's complaint.