Fletcher v. Malone

McCulloch, C. J. Appellant Fletcher holds the original title, under mesne conveyances, to the two tracts of land in controversy which are situated in Lonoke County and are wild and unoccupied. He instituted this action in chancery on August 27, 1918, against appellee Malone to confirm his title. The case was tried on an agreed statement of facts, and the decree was in appellee’s favor dismissing the complaint on the ground of laches. The lands were sold for taxes in the year 1883 to one Ross, who received a deed under his purchase. The deed is not in the record, but it is conceded in the agreement of facts that the deed is “void on its face and is not color of title.” Ross died in the year 1889, leaving a will whereby he devised all of his property to his wife, Elizabeth and one G-arlington, but the will did not describe any particular property, and it is further conceded that the instrument did not constitute color of title in the devisees. On June 8, 1910, G-arlington executed to appellee a quitclaim deed purporting to convey the lands in controversy, and the purpose of the present action is to cancel that deed as a cloud on appellant’s title. Appellee and his grantors paid the taxes on the land continuously, according to the recitals of the agreement of facts, for thirty-three years up to the year 1916, since which time appellant has paid the taxes. The agreement further recites that “the land has, within the last four years, enhanced in value by reason of drainage ditches.” The chancellor held that appellant was barred by laches, notwithstanding the payment of taxes made by appellee and his grantors, except those made after the execution of the quitclaim deed in the year 1910, were not under color of title. It is insisted that this is an erroneous application of the equitable doctrine of laches and we are of the opinion that it is erroneous. In Belcher v. Harr, 94 Ark. 221, we said that “there was no situation presented requiring action on the part of thé-plaintiffs until the actual possession of the land was taken by another, or until color of title was obtained by one that might ripen into perfect title by payment of taxes for the time required by the statute,” and we declined to apply the doctrine of laches. Again, in the case of Fordyce v. Vickers, 99 Ark. 500, we laid down the rule that a person relying on “the equitable defense of laches must show that he or those under whom he claims have paid the taxes on the land under a color of title,” and that “if the taxes are paid by the defendant under no color of title to the land, then it can not be said either that he has been misled or injured by the delay of the true owner to pay taxes on the land. ’ ’ The reason for this rule in regard to the defense of laches is that the owner of land is not deemed to have abandoned his rights until he has neglected for an unreasonable time to assert those rights as against some one who has invaded them. There must be, in other words, a right of action against some intruder before the owner is challenged to assert his rights. The mere payment of taxes without color of title does not, no matter how long continued, constitute such an invasion of the owner’s-rights as to call for action on his part, for that alone could never create a cloud on his title nor operate as divestiture of his title. Penrose v. Doherty, 70 Ark. 256; Jackson v. Boyd, 75 Ark. 194; Chatfield v. Iowa & Ark. Land Co., 88 Ark. 395. Appellee having paid taxes under color of title for only four years and there being no affirmative act on the part of appellant which would in equity operate as an estoppel, the defense against the latter’s assertion of his right to the land is not complete. Earl Improvement Co. v. Chatfield, 81 Ark. 296. Payment of taxes by appellee under color of title would, however, in course of time have ripened into title, and it therefore constituted a cloud on appellant’s title which he is entitled in equity to have removed. The decree is reversed with directions to enter a decree in favor of appellant according to the prayer of the complaint.