Johnson v. Elder

Frauenthal, J. This action was originally instituted by the plaintiff, W. S. Elder, by filing an ex parte petition on October 14, 1907, in the Greene Chancery Court seeking to confirm his title to the land involved in this suit, and which is described as the fractional northeast quarter of section 27, township 19 north, range 5 east, containing 142.08 acres in Greene County, Arkansas. His claim of title was founded upon a tax deed executed to him by the State of Arkansas on June 4, 1903, in which it is recited that the land was sold to the State for the nonpayment of the taxes of 1891. The defendants, Johnson & Burr and A. H. Glasscock, filed an intervention in said suit, and were made parties thereto. They claimed title to the land by virtue of the grant of said land to the State of Arkansas as swamp lands by the United States under the act of Congress approved September 28, 1850; by a deed from the State of Arkansas to John B. Jones on March 18, 1879; and by mesne conveyances from Jones to defendants. In this original petition the plaintiff alleged that the land was wild and unoccupied, but subsequently -he filed an answer to defendants’ intervention and a cross-complaint against the defendants in which he stated that the allegation that the land was wild and unoccupied was made by mistake, and alleged that he was and had been in possession of the land for a number of years; and he asked in this cross-c.omplaint to have his title to the land, quited. He also filed a motion to have the above allegation as to the occupancy of said land stricken from the petition, and this was by the court granted. The defendants made answer to the cross-complaint of the plaintiff; and this cause thereupon became an action by plaintiff to quiet his title to said land. The chancellor found that the plaintiff had acquired title to the laird by adverse possession of the land for two years under said tax deed; and entered a decree quieting the title to the land in the plaintiff. The evidence in the case was taken .partly by depositions and partly by the agreed statement of facts. From this it appears that the tax sale of said lands for the year of 1891, and upon which is founded the tax deed executed by the State of Arkansas to plaintiff, is void for the reason that the county clerk failed to attach to the record of the list and notice of sale of delinquent lands for that year, the certificate required by 'section 5763 of Mansfield’s Digest; and the. sales of lands in said county for said year were held to be void by this court in the case of Taylor v. State, 65 Ark. 595. But the plaintiff claims that, he has had possession of the land under said tax deed for a period of more than two years next before the commencement of this action, and in this way claims title to the land. The muniments of title introduced by defendants indicate a chain-of title from the United States to them. But it is unnecessary to inquire further into the alleged title of defendants because in a suit like this to quiet title the plaintiff must succeed upon the strength of his own title, and not upon the weakness of the title of his adversary. Lawrence v. Zimpleman, 37 Ark. 644; Chapman & Dewey Land Co. v. Bigelow, 77 Ark. 338; Mason v. Gates, 82 Ark. 294; Little v. Williams, 88 Ark. 37; Sibly v. England, 90 Ark. 420. And, if the plaintiff has title to the land by reason of said tax sale and the possession thereunder, it would be superior to the alleged title of defendants. The sole question, therefore, involved in this case is whether the .plaintiff has had the possession of said land under said tax deed for such time as under the law will invest him with the title. This tract of land is located within the meandered lines of what is known as Cache Lake according to the original survey of the United States Government. At the time of the purchase of the land by the plaintiff in 1903 from the State, a number of acres of the land was above the former marshy lands of the lake, and some acres of it were dry; but the greater part of it was covered with timber. About one and one-half acres of the land were cleared and in cultivation, and were located within an inclosure of another tract owned by one Don Byers. Byers and his grantors had supposed that this one and one-half acres of the land, which is in the shape of a triangle, was part of a different and distinct tract of land owned by them, and so had been inclosed with a fence in conjunction with their tract; and this triangle was then in the actual possession of Byers. In the fall of 1903 the plaintiff saw Byers, and laid claim to this part of the land; and thereafter in 1904 had the same surveyed, and by the survey showed that this triangular portion was a part of the tract of land described in his tax deed. Byers and the plaintiff then entered into an agreement by which Byers should hold the possession of the triangular tract as the tenant of the plaintiff, and should attorn to the plaintiff as such tenant therefor. He then executed his note to the plaintiff for the rent of the land for the )rear of 1904 in the sum of five dollars. He agreed to thus become the tenant of the plaintiff and to recognize the title of the plaintiff to the ,ract of land for the reason that he did not want any litigatioi. over it. But he testified that he then held and for all the years since 1904 continued to hold the possession of this tract of land as the tenant of the plaintiff. Byers and his grantors of the land adjoining this tract had had possession of this tract for a number of years before 1903; but in 1903 Byers thus surrendered the possession to the adverse claim and demand of the plaintiff and in subordination to the rights of the plaintiff; and as the tenant of plaintiff he agreed to hold the possession of the lands for the plaintiff, and did so hold it up to the date of the commencement of this suit. The chancellor in effect made this finding of fact. And, while the evidence is not entirely satisfactory, nevertheless it is sufficient in our opinion to support that finding. Where the chancellor’s finding is not clearly against the preponderance of the evidence, it must be sustained. Whitehead v. Henderson, 67 Ark. 200; Hinkle v. Broadwater, 73 Ark. 489. It is urged by the defendants that, inasmuch as Byers was already in possession of the land, he could not become the tenant of the plaintiff. But we cannot see how that would affect the relation between those parties, if as a matter of fact an agreement of tenancy was made. The relation of landlord and tenant is created by a contract; that may be either express or implied; and its validity is, like all other contracts, based on an agreement between the parties. The fact that the tenant is in the possession of the land at the time of the creation of the tenancy does not affect such contract, if made; and it will not affect it, even though the tenant had prior to that time claimed to have a better title to the land. 24 Cyc. 938; Hershey v. Clark, 27 Ark. 527; Hughes v. Watt, 28 Ark. 153. In the case of Locke v. Frasher, 79 Va. 409, it is held that the general rule that a tenant cannot dispute his landlord’s title is not varied when the tenant is in actual possession at the time he makes the contract of tenancy. The effect of the acceptance by such person of such a contract is a recognition of the title and the possession of the lessor, and is the same as if the party, lessor, had entered and taken possession. The mere fact that such a contract is entered into in order to avoid litigation will not defeat it. That is not equivalent to duress; and if possession was not given in this way, it could probably have been secured by the lessor through other legal avenues. In the case of School District v. Long, 10 Atl. 769, one claiming to own land in the possession of another procured the execution of a rental contract by an assertion of title in himself and a threat of eviction; and it was held that such rental contract was valid, and the tenant could not dispute the landlord’s title. In the case in review, therefore, Byers could agree to become the tenant of the plaintiff, although previously in the possession of the land; and under such agreement the possession of Byers as tenant became the possession of the plaintiff as landlord. 1 Cyc. 996; James v. Miles; 54 Ark. 460; Cox v. Daugherty, 75 Ark. 395; Washington v. Moore, 84 Ark. 220; Lucas v. Brooks, 18 Wall. 436; Palmer v. Melson, 76 Ga. 803; Forgy v. Harvey, 151 Ind. 507. Under the evidence in this case, therefore, the plaintiff was in the actual possession of one and one-half acres of the tract of land in controversy for more than two years continuously before the commencement of this suit, and such possession was opeir and adverse. That possession was held under the tax deed, which, though void, was yet a color of title. Elliott v. Pearce, 20 Ark. 508; Cofer v. Brooks, 20 Ark. 542. It bad been repeatedly held by this court that the actual possession of a part of the land under a deed describing the entire tract is in law possession to the limit of the whole land. Ledbetter v. Fitzgerald, 1 Ark. 448; Logan v. Jelks, 34 Ark. 547; Sparks v. Farris, 71 Ark. 117; Crill v. Hudson, 71 Ark. 390; Boynton v. Ashabranner, 75 Ark. 514; Rucker v. Dixon, 78 Ark. 99; Connerly v. Dickinson, 81 Ark. 258; Van Etten v. Daugherty, 83 Ark. 534. Opinion delivered November 1, 1909. The case of Wheeler v. Foote, 80 Ark. 435, is very similar to the case at bar on this question of possession. In that case a part of the land in controversy — about one and one-half acres —had been cleared, fenced and occupied by the owner of the adjoining tract, and had been thus occupied by him under a mistake that this part was on his own tract. The occupant, upon the claim made by the holder of a tax title, agreed to hold possession as tenant of the tax owner, and in consideration that he would protect the timber on the land from trespassers. In that case the court held that through the tenancy thus created the holder of the tax deed obtained possession of this one and one-half acres of the land, and that through the tenant he thus held possession under color of title to the whole; and that this gave the holder of the tax deed title to the whole land described in the deed. It results from this, and we are of opinion that the evidence sustains the finding of the chancellor, that the plaintiff was in continuous adverse possession of the land for more than two years under the tax deed, conveying the land in controversy to him. The effect of this was to confer on the plaintiff a valid title to all the land in controversy. Jacks v. Chaffin, 34 Ark. 534; Wilson v. Spring, 38 Ark. 182; Gates v. Kelsey, 57 Ark. 523; Cooper v. Lee, 59 Ark. 460; Finley v. Hogan, 60 Ark. 499; McConnell v. Swepston, 66 Ark. 141; Ross v. Royal, 77 Ark. 324; Dickinson v. Hardie, 79 Ark. 364. We find, therefore, no error in the decree; and the same is affirmed.