Graysonia-Nashville Lumber Co. v. Wright

Kirby, J., (after stating the facts). It is contended for reversal that appellee had neither title to nor possession of the lands from which the timber was claimed to have been taken, that the description in his deeds thereto was so indefinite as not to convey them nor constitute color of title. (1) This court has often held tax deeds conveying lands as part of a particular division or subdivision of a section void for uncertainty, and such a deed containing a description of land so indefinite and uncertain as to be insufficient is not color of title that will extend the possession of one having an enclosure upon the land to the limit of the land attempted to be described in his deed, because none is sufficiently described therein. The tax deed to Winter and conveyances from his grantee on down to the appellee, attempted to convey the lands by a description which is insufficient and consequently failed to effect the purpose. If appellee was allowed to prove that a certain part of the land was beyond the Saline River in Sevier County, and the remaining portion of the forty-acre tract on the Howard County side thereof, it still would leave the uncertainty since the deed conveys the land as “part of the southwest quarter of the southwest quarter,” as to what part thereof was intended to be conveyed. The deed from Milford to Smith describes -it as “the fractional southwest quarter of the southwest quarter,” and from Smith to Jackson as the fractional part of the southwest quarter of the southwest quarter. (2) “Fractional,” when used in connection with a subdivision of a section in describing it, means either that there is more or less land than is usually contained in such subdivision and generally less, in the sectionizing of same by the government survey. It is not claimed here that this was a fractional forty-acre tract, and shown to be by the Government survey and the fractional southwest quarter, southwest quarter or the fractional part of the southwest quarter of the southwest quarter in Sevier ¡County, Arkansas, would not be a sufficient description to convey the portion of the particular forty acres lying west of the ¡Saline River in said county, according to the opinion of the majority of the court, and under the authority of Scott v. Dunkle Box & Lumber Co., 106 Ark. 83. •(3) The plaintiff must have either title to or possession of the lands to maintain an action for trespass thereon, and not having either can not rely upon the want of title in the trespasser. Price v. Greer, 76 Ark. 426. The court erred in instructing the jury that it should find for appellee the value of. the timber shown to have been taken from said tract of land. 'The judgment is reversed and the cause dismissed.