Bunch v. Johnson

HUMPHREYS, J. Appellants, sole and only heirs .of Minerva E. Bunch, deceased, instituted suit in ejectment against appellees in the circuit court of Mississippi County, Chickasawba District, Arkansas, to recover the south one-fifth of the east one-half of section 27, township 15 north, range 10 east, in Mississippi County, containing 64 acres. Appellants alleged ownership and deraigned their title through mesne conveyances from the United States government to their mother; also claimed title under deed of date April 29, 1916, from C. B. Myers, State Land Commissioner, to C. B. Bunch, and under deed from St. Francis Levee District of date June 12, 1916, to C. B. Bunch. Appellee A. J. Johnson filed answer denying all the material allegations of the complaint and claiming title under donation tax deed from the State of Arkansas of date June 17, 1892; under confirmation decree rendered by the chancery court of said county at the September, 1915, term thereof; and under the seven-year statute of limitations. Appellee R. E. Brisendine also filed answer denying all the material allegations in the complaint and pleading title to the east half of the south one-fifth of said tract of land through mesne conveyances from A. J. Johnson and under the seven-year statute of limitations; also alleged betterments made under color of title and in good faith to the value of $2,000 on that portion of the land claimed by him. The other appellees filed answer claiming rights as tenants under appellees, A. J. Johnson and R. E. Brisendine. Appellants demurred to that portion of the answer of A. J. Johnson setting up the decree of confirmation. The demurrer was overruled. Appellants then filed a motion to transfer the cause to the chancery court, and, by consent, the cause was transferred. Thereafter, appellees Johnson and Brisendine, by separate answers, pleaded laches on the part of appellants and their grantors as a further defense. The cause was heard by the court upon the depositions of certain witnesses showing that appellees nor their grantors had ever been in possession of the property; evidence responsive to the issues of limitations and laches; the following stipulation of the parties, to-wit: “That the appellants claim title to the land sued for herein, under the following chain of title, and that the following deeds and conveyances were actually and lawfully executed and now appear of record. United States of America to the State of Arkansas, Swamp Land Patent, dated September 20, 1850; by patent from the State of Arkansas to the heirs and legal representatives of Chas. Bowen dated December 18, 1916; by quitclaim deed from Chas. Bowen and wife to Gr. E. Moody dated February 1, 1881, by quitclaim deed from Gr. E. Moody and wife to Ellen Patterson dated January 31, 1881; by warranty deed from Ellen Patterson to Minerva E. Bunch dated February 14, 1882; that the appellee, R. E. Brisendine, claimed title to the land under the following chain of title: By warranty deed from A. J. Johnson-and wife to R. L. Reeder, dated November 29, 1910; by warranty deed from R. L. Reeder, single, to F. P. Satterfield, dated February 24, 1911; by warranty deed from R. L. Reeder and F. P. Satterfield, both single, to F. M. Davis, dated October 6, 1913; by warranty deed from F. M. Davis and wife to R. E. Brisendine, dated May 2, 1914;” and the following documentary evidence: Decree of the Mississippi Chancery Court in the case of Listen, as Collector v. Archillion et al., condemning and ordering sold for delinquent levee taxes for the year 1893 four-fifths of the east half of section 27, township 15 north, range 10 east; the county clerk’s certificate of forfeiture of part of east half of said section, township and range, to the State of Arkansas for the non-payment of the taxes for the years 1882 and 1883; donation deed from C. B. Myers, State Land Commissioner, to A. J. Johnson, to part of the east half of said section, township and range, forfeited to the State for taxes for the years 1882 and 1883; deed for forfeited lands from Wm. B. Owen, Commissioner of State Lands, to appellant C. B. Bunch to the south part of the southeast quarter of said section, township and range, forfeited for taxes of 1912; patent from Wm. B. Owen, Commissioner of State Lands, to the heirs of Chas. Bowen, deceased, dated December 18, 1916, reciting that it was issued on a duplicate certificate dated the 18th day of December, 1916, and numbered 2853, in lien of an original certificate dated the 15th day of November, 1852, for the southeast quarter of said section, township and range. On September 3, 1918, the court found the issues of law and fact in favor of appellees and dismissed appellants’ suit, from which an appeal has been prosecuted to this court. There is nothing in the record from which it can be inferred that appellants or their grantors were ever in the actual possession of the real estate in question. They must, therefore, depend, for a recovery, upon the strength of their record titlS and not the weakness of appellees’ title. Wolf v. Phillips, 107 Ark. 374; Brasher v. Taylor, 109 Ark. 281. Appellants cannot recover on the strength of their title emanating from the levee board, because there is no showing that the levee board ever acquired the title from the State of Arkansas either by forfeiture for the nonpayment of taxes or under the donation act of 1893. The only evidence in the record tending to show that there was a forfeiture to the levee board for taxes is contained in the decree of the chancery court of Mississippi County, Arkansas, rendered in the spring term of 1895, in the case of Listen, as Collector v. Archillion et al., in which lands were condemned for delinquent levee taxes for the year 1893. The description of the land in the decree is as follows : “Four-fifths of the east half of section 27, township 15 north, range 10 east, 256 acres.” This description was insufficient to identify or locate the land. King v. Booth, 94 Ark. 306. The deed from the St. Francis Levee Board was based upon this decree and passed no title to C. B. Bunch. The title to the land did not pass to the St. Francis Levee Board under the donation act of 1893 because prior to the passage of that act, to-wit: On the 15th day of November, 1852, the State of Arkansas had issued a certificate of purchase for said land to Chas. Bowen. This certificate of purchase was outstanding at the time the donation act of 1893 was passed and therefore the title to the real estate did not pass under the act to the St. Francis Levee Board. Not having acquired title itself to the land in question, the St. Francis Levee Board passed no title to said land by its deed to C. B. Bunch. Neither can appellants recover on the strength of their title evidenced by deed from Wm. B. Owen, Commissioner of State Lands, to appellant C. B. Bunch, for the description of the land therein is insufficient to designate it. The description contained in that deed is: ‘ ‘ South part of southeast quarter of section 27, township 15 north, range 10 west, 55 acres.” Upon examination of appellants’ chain of title through mesne conveyances from the Government of the United States to their mother, Minerva E. Bunch, as set forth in the stipulations filed herein, it appears from the deed from G. E. Moody, conveying said real estate to their grandmother, Ellen Patterson, bore date of January 31, 1881. The conveyance was made by a pure quitclaim deed. At the time of the execution of the quitclaim deed by G. E. Moody, he had no title whatever to the land in question. He acquired title himself thereto on the 1st day of February following, by quitclaim deed from Chas. Bowen. As the quitclaim deed from G. E. Moody only purported to convey such title as he had on January 31, 1881, and, not having any, conveyed nothing, the after-acquired title did not inure to the benefit of Mrs. Ellen Patterson. Wells v. Chase, 76 Ark. 417; King v. Booth, 94 Ark. 306. It follows the court was correct in holding that appellants did not have record title of sufficient strength upon which to recover. Under this view of the law, it is unnecessary to discuss the character of title held by appellee, or to determine the sufficiency of the proof to sustain the pleas of the statute of limitations and laches. No error appearing in the record, the decree is affirmed.