Harvey v. Douglass

Hill, C. J., (after stating the facts.) 1. The first question “to consider in the case is as to the issues betwen the parties. The general denial of ownership of the land, 'when the alleged title is set forth specifically as required by good pleading, raises no issue at all. This court declared the chief object of the reform system of pleading is- “to compel the adverse parties to disclose to each other the facts upon which they rely- to uphold the claim upon the one side, and to maintain the defense on the other, in order that each may know what he is required to establish or repel by proof upon the trial.” Hecht v. Caughron, 46 Ark. 133. In other words, the object of the Code system is to force a trial on the merits, and pleadings must furnish the opposite part}'- notice of exactly what is to be relied upon in a trial on the merits. The general denial of the legal conclusion stated in the complaint (which had no proper place there; section 2578 of Sandels & Hill’s Digest prescribes the substance of the complaint) does not disclose any fact relied upon. As Chief Justice Cockrill forcibly said: “The formal general denial goes for naught.” Shirk v. Williamson, 50 Ark. 563. See Beard v. Wilson, 52 Ark. 290. Disregarding this denial, and looking to the merits of the answer, these are the only issues presented: (1) the tax purchase asserted in behalf of Sample; (2) adverse holding for twenty-five years; (3) the description of the land is put in issue this way: the defendants claim under a different description from that asserted in the complaint, and the answer may "be treated as alleging the incorrectness of plaintiff’s description, and in the exceptions to the various muniments 'of title of plaintiff it is alleged that the deeds are void for uncertainty in the description. Various exceptions were filed to plaintiff’s muniments of title. Some of these urged here; others not presented in the lower court are urged here. These latter cannot be considered, under section .2580, Sandels & Hill’s Digest. It is provided by section 2578 of Sandels & Hill’s Digest that the plaintiff and defendant must each plead the title relied upon, stating such facts as make a prima facie title in himself, and exhibit with his pleadings the deeds and other written evidences of his title. Section 5761’ provides that allegations not specifically denied must be taken as true. Section.2578 has been substantially followed by each party hereto, in so far as pleading title in themselves, respectively; but the defendants (appellants here) sought by exceptions to various evidences of plaintiff’s title to raise issues thereupon which were not raised by the answer. The failure of the defendants, to controvert the prima facie title pleaded by plaintiff, and pleading in avoidance thereof a tax purchase and adverse possession as the prima facie title in themselves, was an admission of plaintiff’s title, and rendered wholly immaterial the evidences of it which are sought by these exceptions to be attacked. 2. The tax purchase relied upon was void. Without considering all of the objections raised to it, it is sufficient to say that two hereafter mentioned defeated it. The first is as to the amount of costs for which the land sold. The certificate introduced to prove the sale showed the costs were $1.85. This was excessive, and avoided the sale. Goodrum v. Ayers, 56 Ark. 96; Cooper v. Freeman Lumber Company, 61 Ark. 36; Darter v. Houser, 63 Ark. 475. As to the validity of the sale in Arkansas County. On the 28th day of February, 1871, the time for the payment of taxes was extended 60 days. This extended the sale for one year. Vernon v. Nelson, 33 Ark. 748. During those 60 days this land was detached from Arkansas County and placed in Lincoln County, then formed. The( act creating Lincoln County provided that the delinquent taxes due upon tracts within it should be certified to the clerk of Lincoln County by the various clerks of the counties from whose territory it was formed, and the lands should be sold in Lincoln County for the taxes thus transferred to it. Hence this sale in Arkansas County was a nullity. 3. As to the plea of adverse possession.. - The two years’ statute (section 4819, Sand & H. Dig.) contemplates possession under a deed. The answer does not allege a deed, merely a purchase; and the motion to dismiss for not having made the affidavit of tender of taxes and improvements does not. claim that defendants were holding under a deed, but a purchase. If this is the statute relied upon, it would not apply without the deed having been issued. Gates v. Kelsey, 57 Ark. 523; Helena v. Hornor, 58 Ark. 151; McCann v. Smith, 65 Ark. 305. The seven-year statute could not apply because the agreed statement of fact was that Mrs. Douglass has been a married woman ever since a date prior to this sale and the possession of defendants. Title by adverse possession for seven years cannot be built up against a married woman. Sand. & H. Dig. § 4815; Hershy v. Latham, 42 Ark. 305. 4. The description of the land in section 13,. designating it as “parts” of a given subdivision of the section, is ordinarily void, but it is not necessarily so. The court knows judicially that this land is on the Arkansas river, and from these descriptions it is apparent that the sections are made fractional by the meanderings of the river. The certificate from the United States Land Office shows that the Government survey describes these tracts as herein given, with the number of acres to a fraction of each of the “parts.” The survey made by the United States is easily accessible, and the field notes thereof, as well as the plats, and from them any competent surveyor could locate and run out the lines. Monuments were set when the survey was made, and in many instances they yet remain. It is a well-known fact that the Governmental surveys can be readily retraced from the field notes and monuments. Under the decisions of this court in Dorr v. School District, 40 Ark. 237, and Walker v. David, 68 Ark. 544, this description did not render the deed void for uncertainty. 5. There was no error in overruling the motion to dismiss the suit for the failure to make the affidavit of tender of taxes and improvements, as provided in section 2595, Sandels & Hill’s Digest. That statute applies to sales void for irregulárities and omission of the officers, not to such sales as the one here in question made in Arkansas County without authority, etc. Douglass v. Flynn, 43 Ark. 398; Kelso v. Robertson, 51 Ark. 397. The judgment is affirmed.