Covington v. Berry

Riddick, J., (after stating the facts.) This is an appeal by the defendant from a judgment rendered against' her in an action of ejectment for the recovery of six and one-half acres of land. There had been prior a action for the same land, which was commenced on the 22nd of August, 1898, and in which a nonsuit was taken in March, 1900. Afterwards the present action was begun on the 25th of August, 1900. In the first action plaintiff relied on a conveyance from Brinkley to McMurray, and one from the heir of McMurray to plaintiff. After the commencement of the first action plaintiff procured deeds from the heirs of Brinkley to himself. In the second action he does not refer to the conveyance from Brinkley to McMurray, but relies on the conveyance from the heirs of Brinkley to himself. Defendant pleaded the statute of limitations, and her counsel contend that the two suits above referred to were based on different causes of action, and that the statute of limitations did not stop running until the commencement of the last action. The mere fact that plaintiff did not properly set out his chain of title in one or the other of these suits would, we think, on this point be immaterial if he was in fact the owner of, and seeking to sustain, the same title in each action. But the contention of defendant is sound if plaintiff in the second action is seeking to maintain a title acquired subsequent to the cómriiencement óf the first action, for such title gave plaintiff a new cause of action, and the fact that plaintiff brought a former action against defendant did not stop the statute from running against plaintiff on a cause of action acquired after the commencement of such suit. That is to say, if plaintiff held the title to this land, or any part of it, at the time of the commencement of the first action to recover the land, the statute of limitations stopped, as to the land he then owned, on the bringing of such action; but if he acquired title to it, or to part of it, subsequent to that time, then as to that part he had no right of action at the time the first suit was brought, and the statute did not stop running against his right to recover until he acquired title and began the new action. It takes a right on the part of plaintiff and a violation of that right on the part of defendant to make a cause of action; and, until plaintiff acquired title to the land, the possession of the defendant did him no injury, and gave him fió right of action against her. Plaintiff did not set out or read in evidence the deed from Brinkley to McMurray or from McMurray to him. and we are not able to pass on those deeds. But, as the chain of title set out by plaintiff and the evidence tend to show that the title to at least a portion of the land was acquired by plaintiff subsequent to the commencement of the first action, we are of the opinion that the court erred in holding generally that the statute of limitations stopped running on the commencement of the first action. Union Pacific Ry. v. Wyler, 158 U. S. 285; Sicard v. Davis, 6 Peters, 124; Whalen v. Gordon, 95 Fed. Rep. 305. The objection to the introduction of the transcript of the record of the State Land Office should have been sustained, in the absence of a showing that the original patent was lost or could not be produced. Carpenter v. Dressler, ante, p. 400. As to the question whether the land was sufficiently described in the various deeds submitted by plaintiff, it is not material to notice the description of the land contained in the deed from the United States to the State, for the reason that the title to the swamp land of the State does not depend alone upon .that deed, but upon the grant contained in the statute of 1850. The fact that the State afterwards conveyed this land to Brinkley as swamp land makes out, we think, at least a prima facie showing of title in him. The deed of the State describes the land as the east half of the southeast quarter, giving section, range and township', which is sufficiently certain. The deed from Folbre, by which Folbre, as commissioner to enforce a decree for the payment of levee taxes, sold and conveyed the land to plaintiff, described the land as “E. pt. S. E. 24 Sec. 30, 5 N., 4 E., containing 63 acres,” and the tax deed from' the clerk of St. Francis County, conveying land to Reeves, under which deed plaintiff also claimed, described it as the east part of southeast quarter of section 30, 5 N., 4 E., containing 60 30-100. These descriptions might possibly be construed to describe a tract in the shape of a parallelogram taken from the east side of the quarter section described, but the evidence shows that it was not the intention to sell a tract in that shape. Under former decisions of this court these descriptions are not sufficiently certain to pass title in a proceeding to collect taxes, and these deeds are void, and the exceptions to them should have been sustained. Rhodes v. Covington, 69 Ark. 357; Texarkana Water Co. v. State, 62 Ark. 188; Schattler v. Cassinelli, 56 Ark. 172. We have not overlooked the fact that this is not an ordinary tax sale, but a sale under the order of a court. This court has held in a recent casé of this kind that? a mistake in the name of the owner of the land did not invalidate the proceedings (Ballard v. Hunter, 74 Ark. 174) ; because the published description of the land is notice to the owner, even though another person be designated as owner; but if the land is not correctly described, the owner has no notice. The court acquires jurisdiction by the filing of the complaint and publication of the notice describing the land; and if the land* is not described so that the owner may know that his land is being proceeded against, the court acquires no jurisdiction to sell it. For this reason we think that when there is no personal service, but notice is given by publication only, as here, and when, as in this case, the name of the owner of the land is not correctly stated, the description of the land must be reasonably, sufficient to identify it. The land here is only six and a half acres, in the shape of a triangle, and we are of the opinion that its description as the “east part of S. E. J4 of Sec. 30, 5 N., 4 E., containing 60 30-100 acres” was well calculated to mislead an owner whose name did not appear in connection with the description. For the reasons stated the judgment is reversed, and the cause remanded for a new trial, with leave for either party to amend pleadings.