Wilson v. Chisholm

Humphreys, J. Appellee, J. Chisholm, instituted suit in the Union Chancery Court against appellant to cancel a State deed to T. E. Wilson for the following described real estate in said county: N. W. ¼, sec. 33, tp. 19 S. R. 18 W., and to quiet and confirm the title to said real estate in him as against said appellants. In the bill filed appellee deraigned his title to said land through mesne conveyances from the State of Arkansas, the origin of his alleged title being a certificate of donation of date August 19, 1882, and deed issued thereon of date March 21, 1884, which were based upon an alleged forfeiture of said land to the State of Arkansas, for failing to pay the taxes, due and assessed for the years 1869 and 1870. It was also alleged that appellee, and those through whom he claimed, had been in the. actual possession of said land, making improvements thereon continuously since August 19, 1882, and had paid the taxes each and every year from and including the year 1885, the year following the date of the donation deed. Appellants interposed the defense in an answer and cross-petition that the land in question was included in an overdue tax proceeding instituted on July 15, 1882, in the chancery court of Union County; that in said suit the alleged forfeiture was declared by the court to be void and of no effect., and that said land* be sold for taxes, due and unpaid, for the years 1869 and 1870; that, pursuant to said order of sale, the land was sold on the 15th day of June, 1883, and that thereafter the sale was duly confirmed by the court; that the donation certificate relied upon by appellee was issued by the State after the institution of said suit, and that the donation deed executed in pursuance thereto was delivered prior to the expiration of the period of redemption allowed in the overdue tax act of March 12, 1881, under which the overdue tax suit aforesaid was instituted ; that the lands were sold and certified to the State in the overdue tax suit, and on December 20, 1919, the State issued a patent to appellant, T. E. Wilson, for-said land, based upon the overdue tax proceeding; that on December 22, 1921, said patent was recorded; that subsequent thereto T. E. Wilson conveyed said land to appellant, A. J. Marsh. Appellants prayed for a dismissal of appellee’s bill and possession of the land. A demurrer was filed to the answer and cross-petition, which was sustained by the court, and, upon failure of appellants to plead further, the decree was rendered canceling the State deed to T. E. Wilson and quieting and confirming the title in appellee as against appellants. From that decree an appeal has been duly prosecuted to this court. The facts as gleaned from the -pleadings are as follows : The land in question was certified to the State under a void forfeiture of 1869 and 1870. On July 15, 1882, a suit was filed in the chancery court of Union County under the overdue tax act. of 1881, in which this land was included. On August 19,1882, the State issued a certificate of donation for said land to James M. Owen. James M. Owen took immediate possession thereof, and made the necessary improvements to procure the donation deed which lie obtained, on March 21, 1884. During the time of his occupancy it was adjudged in the overdue tax suit that the tax forfeiture to the. State upon which the donation deed was based was void and of no effect. The land was thereupon ordered sold for the taxes of 1869 and 1870, and on June 15, 1883, was sold under the overdue tax decree to the State, which sale was confirmed by the court. In 1885 after the issuance of the donation deed to James M. Owen the land was assessed to James M. Owen, and he and his successors in title paid the taxes each and every year on said land after and including’ the taxes for the year 1885, and held the actual, peaceful, and uninterrupted possession thereof down to the present time. On December 20, 1919, the State issued patent for said land to T. E. Wilson, based upon the overdue tax proceeding. The record fails to show that James M. Owen or his successors in title ever redeemed the land from the overdue tax foreclosure. The only question presented by this appeal is whether the presumption will be indulged that the land was redeemed from the overdue tax foreclosure for the taxes of 1869 and 1870 by James M. Owen or his successors in title. Appellants take the position that James M. Owen and his successors in title had ho right to redeem the land because they acquired no interest therein under the donation certificate and the donation deed made pursuant thereto. The case of St. Louis Refrigerator & Wooden Gutter Co. v. Langley, 66 Ark. 48, is cited in support of their contention that they acquired no interest whatever in said land under said certificate and deed.' That case does hold that the State by purchase at such sale acquired no title which the State Land Commissioner had power to convey until after the redemption period expired; and that during the pendency of the overdue tax suit the Commissioner of State Lands had no authority to issue a donation certificate and deed based upon a forfeiture of land for the nonpayment of taxes; and also that after acquired titles had no application to conveyances made by the State. It is true that James M. Owen and his successors in title acquired no interest in the land as against the true owner under the donation certificate, but it served the purpose of showing that he went into possession of the land in good faith, and not as a squatter or mere trespasser. His possession and claim of title in good faith constituted such an interest in the land as gave Mm a right to redeem the land from the sale in the overdue tax foreclosure against any one other than the true owner. It was held in the cases of Woodward v. Campbell, 39 Ark. 580, and Sanders v. Hill, 42 Ark. 215, and reaffirmed in the case of Hodges v. Harkleroad, 74 Ark. 343, “that almost any right either in law or equity, perfect or inchoate, in possession or in action, or whether in the nature of a charge or incumbrance on land, amounts to such an ownership as will entitle the party holding it to redeem.” The facts in this case bring it well within the' rule of a presumptive redemption from an overdue tax forfeiture announced in the cases of Wallace v. Hill, 135 Ark. 353, and Lloyd v. Thornton, 147 Ark. 247. Appellants insist that the rule in those cases relates to real owners only, and that a redemption will not be presumed in favor of any other than absolute owners. We cannot agree with them in this contention. Those cases had in mind redemption laws when they used the word ‘ ‘ owner, ’ ’ and used it as a generic term, embracing even a possessory right. The trial court was correct in indulging a presumption that James M. Owen or his successors in title redeemed the land from the overdue tax foreclosure before appellant, T. E. Wilson, procured a patent to said land from the State. The decree is therefore affirmed.