Wheeler v. Foote

McCulloch, J. This case involves, the title to forty acres of land, containing a valuable brake of cypress timber. Mrs. Foote, the appellee, first brought ejectment in the circuit court of Ashley County against appellants, but subsequently instituted suit in the chancery court to restrain appellants from cutting the timber, and the two actions were consolidated in the chancery court, where a decree was finally rendered in favor of appellee. Both parties claim title to the land by limitations. Appellee claims title by actual adverse possession of a part of the tract under color of title to the whole; and appellant claims to have paid taxes under color of title for seven years in succession, the last three payments being since March, 1899. Only a small part of the land — about an acre and a half— has been fenced and cultivated or otherwise actually occupied. This small clearing was made about fifteen years ago by one Bloomer, the owner of the adjoining tract, who cleared the land under a mistake as to the boundary. Appellee claimed the lands then under color of title, and as soon as Bloomer made the clearing she laid claim to it, and he (Bloomer) conceded her .right to possession. He continued in possession up to about the time of the commencement of this litigation — a period of more than seven years — under an agreement with appellee that he could occupy and cultivate the land in consideration that he would protect the timber from trespassers. He testified that he occupied it as the land of appellee and pursuant to that agreement with her. The small clearing was all of the tract which was susceptible of cultivation — the remainder was low and covered by the cypress brake. The facts, which are practically undisputed, are sufficient to make out appellee’s title by adverse possession. Her occupancy of a part of the tract through her tenant, Bloomer, under color of title to the whole, gave her title to the whole. This amounted to an investiture of title by limitations, and the only remaining question is whether or not appellants and their grantors subsequently acquired title by the continuous payment of taxes for seven years under color of title. It is conceded that appellant’s paper title is invalid, though effectual as color of title to support adverse possession by payment of taxes. The application of the act of March 18, 1899 (Kirby’s Digest, § 5037), which was construed by this court in Towson v. Denson, 74 Ark. 302, is in express terms limited to unimproved and uninclosed lands. It has no application to improved or inclosed lands. Now, as has already been stated, a small portion of the tract on which appellants have paid taxes is improved and in actual occupancy by appellee’s tenant. But counsel for appellant insist that the remainder of the tract- — about 38^ acres of it — is unimproved and uninclosed, and therefore falls within the operation of the statute. We do not think, however, that the statute can be invoked under those circumstances. The tax payments were upon the whole tract as an entirety, not upon any separate or distinct part, and it can not be said that the tract, as an entirety, was unimproved or uninclosed.' A part of it was in fact improved and occupied. We do not mean to hold that the statute in question can not be applied to unimproved and uninclosed land" because some person other than the taxpayer may have constructive possession of it; for instance, where taxes are paid on a tract entirely unimproved and uninclosed, but where another person has constructive possession by reason of being in actual possession of a contiguous tract under a deed describing both tracts. That question is not before us in this case, and we do not decide it. What we do decide now is that the statute does not apply where a part of the particular tract on which the taxes were paid was improved and actually occupied by another person. Affirmed.