Haggart v. Chapman & Dewey Land Co.

McCulloch, J., (after stating the facts.) This case, so far as it applies to Chapman & Dewey Land Company, is controlled by Myers v. Hawkins, 67 Ark. 413. It is neither alleged nor proved that cutting of the timber would result in irreparable injury to the land, or that said defendant was insolvent. On the other branch of the case, the plaintiffs seek to cancel, as a cloud on their title, a former decree of the chancery court adjudging the land to Mrs. Grider, rendered in a suit between strangers to the title — -a suit in which neither the plaintiffs nor any privy to their title was a party. The land was wild and unoccupied. Did the decree constitute such a cloud upon plaintiff’s title that a court of equity can be called upon to remove ? Judge Cooley says that “a cloud upon title is something which constitutes an incumbrance upon it, or an apparent defect in it; something that shows prima facie some right of a third party, either to the whole or some interest in it.” 2 Cooley on Taxation, p. 1448. Judge Field, in Pixley v. Huggins, 15 Cal. 133, said: “The true test, as we conceiVe, by which the question whether a deed would cast a cloud upon the title of the plaintiff may be deter-minded, is this: Would the true owner of the property, in an action of ejectment brought by the adverse party founded upon the deed, be required to offer evidence to defeat recovery? If such proof would be necessary, the cloud would exist; if the proof would be unnecessary, no shade would be cast by the presence of the deed. If the action would fall of its own weight without proof in rebuttal, no occasion would arise for the equitable interposition of the court; as in the case of a deed void^upon its face, or which was the result of proceedings void upon their face, requiring no extrinsic evidence to disclose their illegality.” This court has held that a tax deed void on its face is no cloud on title. Chaplin v. Holmes, 27 Ark. 414; Crane v. Randolph, 30 Ark. 579; Lawrence v. Zimpleman, 37 Ark. 643; Allen v. Ozark Land Company, 55 Ark. 549. A conveyance of land executed by a stranger to the title, or the judgment of a court rendered in a suit between strangers to the title can not affect the true owner, and casts no cloud upon title of the true owner. It is not an “apparent title,” nor does it prima facie create a right which the true owner, or even an occupant without title, of land must bring forward evidence to rebut. Rea v. Longstreet, 54 Ala. 291; Thompson v. Etowah Iron Co., 91 Ga. 538; Dunklin County v. Clark, 51 Mo. 60; Ward v. Dewey, 16 N. Y. 519. “If an entire stranger assumes to convey the premises to which he has no shadow of a title, and- of which another is in possession, no real cloud is thereby created. There is nothing to give such a deed even the semblance of force. It can never be used to the serious annoyance or injury of the owner.” Ward v. Dewey, supra. The same can be said of a decree rendered in a suit between strangers to'the title. At most, such a decree serves only to adjudicate the title between these two, or to pass whatever title one may have to the other. It does not cloud the title of the true owner. The chancellor was therefore correct in dismissing the complaint, and the decree is affirmed»