Miller v. Chicago Mill & Lumber Co.

SMITH; J. This is a suit in equity brought by appellant to confirm and quiet title to an undivided half interest in certain lands situated in Mississippi County, Arkansas, which are alleged to be wild and unimproved. These lands are said to be worth now a million and a half dollars and several very interesting questions are discussed in the briefs, yet we think the legal principles which control the decision of the case are simple and well defined. Appellant’s right to the relief prayed is denied upon the grounds, among others, that her suit is barred by the statute of limitations and by laches, and while we think both defenses aré well taken we do not discuss the question of laches, as a decision based upon that ground would require a very lengthy recital of facts, and we regard it unnecessary to consider that defense, as the defense of limitations is equally decisive. Certain depositions were taken and certain other facts were, brought into the record by stipulation of counsel, from which we extract the following statement: Appellant was born February 22,1866, and her father, from whom, she inherited her title, died March 23,1867, and one Jarnigap was appointed guardian of her person and estate on November 28, 1881. There was a decree of the chancery court of Mississippi County, to which appellant, through her guardian, was a party, rendered on May 8, 1882, ordering a sale of the lands in suit, and the deed to the purchaser under this sale was executed and delivered July 28, 1882. Appellant attained her majority on February 22,1884, and married one Alfred Lacour on August 3,1891. She obtained a divorce from Lacour in 1897 and thereafter remained unmarried until November 28,1906, at which time she married John H. Miller, since which last date she has been a married woman. The present suit was filed July 28, 1917, which is more than thirty-five years after the date of the decree which she assails, and since its rendition and the sale thereunder there have been many conveyances — the number is said to run into the hundreds — of the various tracts of land there described. This decree of sale is attacked upon the ground that the chancery court was without jurisdiction, and it is said that its effect was to render the parties to it tenants in common. It is only by asserting a tenancy in common that appellant seeks to avoid the operation of the statute of limitations.' That decree ordered a sale of the whole title and interest, ¿nd the commissioner’s deed to the purchaser purported to convey the whole title, and each successive deed in the various chains of title from that purchaser have purported to convey the entire estate, and by stipulation it is agreed that the present claimants, who were defendants below and aré the ' appellees here, have paid the taxes on said lands while claiming the title thereto by-virtue of the muniments set out in the various answers; but it was not admitted that such muniments constituted color of title. (1) The failure to make an admission that the deeds constituted color of title is unimportant, as it is manifest they did constitute color of title. Fletcher v. Joseph, 105 Ark. 646. A major portion of the lands are wild, while other parts have been in the actual adverse possession of some of the defendants for more than the statutory period, but it is stipulated that the lands have either been unimproved and unenclosed or have been in the actual possession of the defendants since 1882, during which time they and their predecessors in title have paid the taxes due thereon. (2) We do not pass upon the validity of the decree of sale; nor do we stop to decide whether it constituted the parties thereto tenants in common or not, as we think the facts set out above disprove the existence of that relation between appellant and appellees — none of whom were parties to that decree. (3) It is said in appellant’s behalf that she lived in California, three thousand miles from the locus in quo, and had lived there since she was a small child, and that neither appellees nor their predecessors in title gave her any notice that their possession was intended to be exclusive and adverse, and that she had no knowledge of that fact. But her existence and whereabouts and claim of interest in the land were unknown to appellees, and it would have been impossible for them to give any notice except that constructive notice arising from the facts herein previously recited. A similar contention in regard to the lack of notice was made in the case of Wilson v. Storthz, 117 Ark. 418; but we disposed of it there by saying: “The facts which we have recited show that there was never any question with Storthz about the interest which he had purchased, nor that his holding was adverse. It is true his co-tenants received no actual notice of this adverse holding, but none could have been given them. Storthz was unaware of their existence.” See, also, other cases there cited. As appellant and appellees are not tenants in common, it follows that appellees could, by actual possession of the cleared land, or by payment of taxes on the wild lands, acquire title against appellant, and this they appear to have done according to the recitals of the agreed statement of facts. (4) Appellees and their predecessors paid the taxes each year from and after 1882, and appellant was discovert from the time of her divorce in 1897 until her remarriage in 1906, a period of nearly nine years. So that appellant’s right to sue became barred by these payments of taxes for a period of more than seven years made during the time she was not under the disability of coverture. Section 5057 of Kirby’s Digest. (5) As has been said, actual possession of some of these lands has been taken by some of the owners made defendants herein; but that fact did not interrupt the running of the statute in their favor, as in the case of Gaither v. Gage, 82 Ark. 51, it had been held (to quote a syllabus) that “payment of taxes on land for a portion of the period of limitation of seven years, while the land was unimproved and uninclosed, may be joined to actual adverse possession for the remainder of the period so as to give title by limitation.” It follows that appellant’s cause of action is barfed and the decree dismissing it is, therefore, affirmed.