| Ark. | Oct 20, 1913
This is an action institüted by appellants, Mattie Wood and C B. Primm, against appellee, Freeman-Smith Lumber Company, to quiet title to certain tracts of land in Calhoun County, Arkansas, and to restrain appellees from removing timber from such lands.
Appellee held a timber deed, executed to it by W. C. Dunn, dated November 2, 1899, conveying to appellee the timber on the lands and giving time to remove the same. That time has, according to the allegations of the complaint and proof in the case, expired, and the purpose of this suit is to cancel the timber deed as a cloud on the title of appellants and to prevent appellee from cutting the timber as it threatens to do.
The chancery court granted the relief sought as to some of the tracts and cancelled the timber deed as to those tracts; but dismissed the complaint as to the other tracts on the ground that appellants had failed to prove title to those tracts.
Both parties appealed to this court, but it is not insisted by the defendant, Freeman-Smith Lumber Company, that the decree against it cancelling its timber deed as.to some of the tracts was erroneous; therefore, that part of the decree will stand affirmed without further discussion.
W. C. Dunn conveyed the lands to appellant subsequent to the execution of his timber deed to appellee. The parties, therefore, claim title from a common source, and it was unnecessary for appellants to deraign title beyond the common source. That is the rule in actions of ejectment as well as those to quiet title. Stafford v. Watson, 41 Ark. 17" date_filed="1883-05-15" court="Ark." case_name="Stafford v. Watson">41 Ark. 17; Griesler v. McKennon, 44 Ark. 517" date_filed="1884-11-15" court="Ark." case_name="Griesler v. McKennon">44 Ark. 517; Harrison Machine Works v. Bowen, 200 Mo. 235. The rule is stated as follows in Sedgwick & Wait on Trials of Title to Land, § 803: “Whenever plaintiff and defendant both deraign title from the same source, the plaintiff usually need not go behind this source to prove his title. # * * Where the defendant can show a better title outstanding, and has acquired it, the rule ceases to apply. Where the defendant is allowed to impeach the common source of title, he must establish that he himself has acquired a superior title, and, except to this extent, he is not permitted to invoke the rule that the defendant can defeat the plaintiff by showing a better title in a third person.”
This principle applies with peculiar force- to the present action wherein appellants seek to cancel, as a cloud on their title, a timber deed previously executed by their grantor to appellee. Appellee is estopped to deny the title of its grantor, W. C Dunn, who is also the grantor of appellants, and it does not claim any right to take the timber except under that deed. The court, therefore, erred in denying relief as to all of the tracts of land described in the complaint. The decree as to those traets to which appellants were denied relief is, therefore, reversed and the cause remanded with directions to enter a decree in appellant’s favor as to those tracts.