Cotton v. White

T. D. CRAWFORD, Special Judge, (after stating the facts). Appellant asks that his deed from the State 'Land Commissioner to the E 27/40 of the NW/4 of the SE14, section 1, township 18 north, range 20 west, in Boone County, be confirmed and quieted. The chancellor found that this tract was assessed and advertised in the list of delinquent lands as “E Pt. NW SE, 27 acres,” and that the tax books and record of the notice of the delinquent lands were changed so as to make the description read “E 27/40 NW SE, 27 acres.” He held, however, that the description in the assessment as E Pt. NW SE 27 acres, was a good description and sufficient to identify the land. Was this holding correct? (1) This court has uniformly held such a description to be insufficient in a tax title. In Covington v. Berry, 76 Ark. 460, a tax deed describing the land sold as “E Pt. of tbc SE% of section 30, township 5 north, range east, containing 60.30 acres,” was held void. So, where at a tax sale the deed described the land sold as “Part E% NE%, section 32, township 12 south, range 1 west, 55 acres,” the deed was held void. Dickinson v. Arkansas City Improvement Co., 77 Ark. 570. See also, Hewett v. Ozark White Lime Co., 120 Ark. 528. As a further source of title, appellant relies upon the two years’ statute of limitations. He testified that he took possession of the above tract in 1910 by going down there and finding a Mr. Patrick in possession and cultivating the land. Patrick told him that he had been a tenant of the original owner. Appellant told Patrick that he had bought the land at tax sale and wanted possession, and Patrick agreed to hold under appellant and pay rent to him provided certain improvements were made by appellant. These improvements were made, and Patrick remained on the land as appellant’s tenant for three years. Was Patrick’s possession as tenant of appellant adverse to the holders of the legal title? (2) The element of notoriety must be added to adverse possesion before it can ripen into title by limitation. A bare agreement on the part of one in possession of land to attorn to another, who claims it, is insufficient, in the absence of notoriety, to render the latter’s possession adverse to a third party. Johnson v. Elder, 92 Ark. 30, 121 S. W. 1066. There is no evidence in this case that notice was in any manner brought home to appellee, or to his predecessors in title, that Patrick was holding adversely to him or them. Under these circumstances, the claim of title by adverse possession must fail. (3-4) Appellant insists that appellee is not entitled to have his title to this tract of land confirmed, because he failed to show title in himself to the land. He quotes from Bullock v. Duerson, 95 Ark. 445, to the effect that a plaintiff in a suit to quiet title must succeed, if at all, as in actions of ejectment, upon the strength of his own title, and not upon the weakness of his adversary’s. Appellee relied upon a deed purporting to be executed by the Bartles Lead & Zinc Company, by its president and secretary. Appellant in his answer denied that the Bartles Lead & Zinc Company was a corporation, and, if it was such, denied that said president and secretary had any authority to execute said deed conveying said lands. The appellant’s abstract shows that a deed conveying these lands was executed by Jacob Bartles to the Bartles Lead & Zinc Company, and that the company conveyed the lands to appellee by a deed executed by its president and secretary, and that both deeds were duly acknowledged and recorded. There was no affirmative proof as to whether the Bartles Lead & Zinc Company was a duly incorporated company, or, if it was a corporation, whether its officers were authorized Jo execute such deed. Appellant insists that, in the absence of proof, it will not be assumed that there was such a corporation, or that the president and secretary were authorized to execute the conveyance upon which appellee relies. Appellant’s abstract justifies a finding that the Bartles Lead & Zinc Company as a corporation undertook to receive and convey title to these lands. Except as against the State, it is immaterial whether such corporation was a de jure or a de facto corporation, and its conveyances are binding as against all the rest of the world. 1 Clark & Marshall, Private Corporations, Sec. 81d. Mr. Cook says: “The execution and delivery of an instrument by a corporation as a corporation raises the presumption that the company was regularly incorporated.” 3 Cook on Corporations, Sec. 722, page 2554. “Whenever the circumstances may have been such as to authorize a conveyance, lease, mortgage or pledge of its property by a corporation, that it was authorized will be presumed until the ‘contrary is affirmatively shown.” 1 Clark & Marshall, Private Corp., Sec. 164. Where land is conveyed to a company as a corporation, and by its president and secretary it undertakes, as such corporation, to convey such land to another, it will be presumed that it was regularly incorporated and that its officers were authorized to make the deed. (5) Moreover, appellant is not in a position to insist upon the rule upon- which he relies. The statutory presumption in favor of a conveyance of lands forfeited for taxes, executed by the Commissioner of State Lands (Kirby’s Digest, § 4807) has been overcome in this case by proof that the land was not assessed by a sufficient description to identify the land. The deed of the commissioner being invalid, plaintiff was in fact a trespasser. (6) While it is a general rule that a plaintiff in ejectment must recover upon the strength of his own title, and not upon the weakness of his adversary’s, this rule has no application where the defendant is a mere trespasser invading the actual possession of plaintiff, in which case .plaintiff can recover on prior peaceable possession alone. 15 Cyc. 22; Green v. Jordan, 83 Ala. 220, 3 Am. St. Rep. 711; Horton v. Murden, 117 Ga. 72; Rhule v. Seaboard Air Line Ry. Co., 102 Va. 343; Newell on Ejectment, p. 434; Warvelle on Ejectment, Sec. 237; John Henry Shoe Co. v. Williamson, 64 Ark. 100; Price v. Greer, 76 Ark. 426. The rule requiring the plaintiff, in actions of this character, to recover on the strength of his own title, is based upon the presumption that a defendant in possession is rightfully in possession. No such presumption obtains in favor of a mere trespasser. Appellant claims title, by purchase at tax sale in 1911, to the following tracts of land, all situated in section 1, in township 18 north, range 20 west, towit: 1. The Ni/2 of the SW% of the NE%. 2. The W% of the NWy^ of the NEy=. 3. The Sy2 of the SWy4 of the NE%. 4. The W% of the SE% of the NE%. Four separate deeds were executed in 1913 by the county clerk, conveying the above lands to appellant in pursuance of the tax sale in 1911. Appellee has pointed out no defect in the sale or in the deeds, except that he' contends that tracts 1, 2 and 4 were improperly placed on the tax books, and that appellant was disqualified from purchasing the first tract by reason of being in possession thereof. (7) As to the tract numbered 1, the N% of the SW14 of the NEi/4, appellee contends that, inasmuch as this land forfeited to the State in 1907 by an erroneous description, and was purchased by appellant from the State, he could not acquire a better title by allowing it to forfeit for taxes and buying it in. This contention must be sustained. One in possession of land, and receiving the. rents and profits thereof, under claim of ownership, will not'be permitted to strengthen his title by allowing the land to forfeit for taxes and purchasing it at tax sale. Rodman v. Sanders, 44 Ark. 504; Wade v. Goza, 99 Ark. 543. The purchase of land at tax sale can not have the effect of strengthening the title of those who are in possession and taking the profits, since they ought to keep down the taxes. Hunt v. Gaines, 33 Ark. 275. In this case, defendant testified that he was in possession of the land, and that he received the rents and profits thereof for the year in which it was delinquent. As to .this tract, his title must fail. As to the second and fourth tracts, appellee’s contention is that these tracts forfeited to the State in 1907, and that this took the tracts off the tax books and they could not be replaced thereon until the State Land Commissioner certified the lands back to the clerk. (8) Conceding, without deciding, that this is true, it does not appear that the lands were not properly certified by the State Land Commissioner, before the county clerk placed them on the tax books. The law presumes that every officer does his duty, and that in his official acts he has not exceeded his authority, and, if he can act only in a certain contingency, that such contingency has happened. McCamey v. Wright, 96 Ark. 477. (9) The sale of these lands for the taxes of 1910 was not invalid because the taxes due on these tracts for previous years were not entered on the tax books for the year 1910. It is true that Kirby’s Digest, § 7022, makes it the duty of the county clerk to enter on the tax books the taxes for the years in which the lands have escaped taxation. A valid tax sale for 1910 would pass title as against the original owner, though the State might still have a lien for the taxes of previous years. It does not appear, however, that the taxes for the intervening years have not, in fact, been paid. (10) Furthermore, appellee’s contention is that the description of these two tracts in the assessment of 1907 was absolutely void. They were described in the tax sale in 1911 as the W% of the NW% of the NE14, and the W14 of the SE% of the NE14; but in the tax assessment of 1907 they were described as part NW% of the NE14, and W. pt. SE% of the NE%, 50.96 acres. The court agrees with appellee’s contention that the description in the tax assessment of 1907 was void, and that it described no lands and that the tax sale was thereby rendered void, even though the land was correctly described in the State Land Commissioner’s deed. It is obvious that, under these circumstances, no title passed to the State by the forfeiture, and the lands could properly be placed on the tax books. (11) On April 24, 1914, appellee undertook to redeem the two tracts of land which forfeited to the State in 1910 for the taxes of 1907, towit, E Pt. NW]4 NE% and W Pt. SE/4 NE]4> section 1, township 18 north, range 20 west, 50.96 acres, hy paying the taxes for that year and the intervening years. He claims to own that part of NW1/ NE/4 of the section which lies west of Crooked Creek and a certain branch thereof. He admits that so much of the forty-acre tract as lies east of these streams belongs to a third person, whose taxes have been paid. Inasmuch as the forfeiture of the above described tracts in 1910 is held to be void for inadequacy of description of the lands, a redemption thereof by the same description is equally ineffective, since it can not be ascertáiñed from the redemption deed what lands were redeemed. No objection whatever is pointed out to the third tract purchased in 1911 by appellant from the tax collector, namely, the SVs of the SW% of the NE%, in the section, township and range aforesaid. This tract does not seem to have forfeited in 1907. It will be noticed that appellee’s record title is meandered by a certain stream called “Crooked Creek” and by a certain branch thereof. No plat has been furnished in the transcript showing the course of this stream. It is impossible for this court to determine just how much of the land purchased by appellant at the tax sale of 1911 was included in the lands claimed by appellee under his deed from the Bartles Lead & Zinc Company. As against the appellant, the appellee’s title to the E 27/40 of the NW]4 of the SE14, and the N% of the SW% of the NE/4, both of section 1, township 18 north, range 20 west, will be quieted. As against the appellee, the decree as to appellant’s title to the W% of the NW/4 of the NE^/And the of the SW/4 of the NE/4 and the W/4 of the SE% of the NE14, all in section 1, township 18 north, range 20 west, in Boone County, is reversed and remanded with directions to enter a decree accordingly. Hart and Smith, JJ., dissent in part. Humphreys, J., not participating.