Culver v. Gillian

Hart, J., (after stating the facts). One of the de-. fenses to the suit is that the defendant has title to the lots in question by adverse possession. It will be observed that he does not claim to have entered into possession of the lots under color of title. In cases of adverse possession under color of title the actual possession, by presumption of law, is constructively extended to the limits defined in the paper conveyance which gives color of title. In the case, however, of adverse possession without color of title, the adverse possession is limited to the land actually adversely occupied. Here the defendant does not claim adverse occupancy under color of title. While, in such cases, to constitute an adverse possession, there need not be a fence or building, yet there must he such visible and notorious acts of ownership exercised over the premises continuously, for the time limited by the statute, that the owner of the paper title would have knowledge of the fact, or that his knowledge may be presumed as a fast. In other words, it has been well said that if the claimant “raises his flag and keeps it up,” continuously for the statutory period of time, knowledge of his hostile claim of title may be inferred as a matter of fact. In the present case it may be said that, under the circumstances shown by the defendant himself, there has been no actual, visible, hostile appropriation of the lots, to the exclusion of the owner of the paper title, continuously for seven years. The lots were uninclosed and unimproved. There was no actual continuous use of the lots by the defendant of such unequivocal character as to reasonably indicate to the owner that the defendant was making a hostile claim to the lots. Norwood v. Mayo, 153 Ark. 620. The defendant claims to have gone into possession of the lots in 1907 and to have held adverse possession ever since. He. describes his adverse possession, however, and i-t is not of such a substantial character as to .give him title to the lots. At one time he had the underbrush cleared and some of the larger trees cut down. One year he planted and cultivated a few.garden seed. He did nothing from that time until the suit was brought, except that, in 1917, a part of the lots were inclosed and rented. It is true that, in the beginning, he put up a sign on the lots forbidding trespassers from coming there. This of itself would not be sufficient to show adverse possession of the lots against the true owner. It is not even shown that the sign remained posted np continuously for seven years. Therefore we hold that, under his own testimony, the defendant did not acquire title to the lots by adverse possession. Another ground of defense relied on for the reversal of the judgment is that it appears from the record that the five lots were assessed for taxes and sold en masse for a lump sum, and that the case is thus brought within the rule announced in Campbell v. Sanders, 138 Ark. 94. This would be true if the tax deed showed on its face that it was void. This would be in application of the well-known rule that the plaintiff in an ejectment case must recover upon the strength of his own title and not upon the weakness of that of his adversary. It does not appear from the record, however, that the tax deed in question is void on its face. Prima facie it conveyed a good title from the State to one of the grantors of the plaintiff. An invalid tax deed is color of title, and, as such, is competent evidence to mark the boundaries and extent of the purchaser’s possession. This court has expressly held that a donation deed executed by the State of Arkansas is prima facie evidence of title, and vests in the grantee constructive possession in the case of wild land; and that this possession is actual for all the purposes of remedy until it is interrupted by an actual entry and adverse possession taken by another. Thornton v. St. Louis Refrigerator & W. G. Co., 69 Ark. 424. As we have already seen, the defendant acquired no title whatever to the lots by adverse possession. He made no claim under a paper title. Therefore, if the plaintiff had a prima facie title, he might recover possession of the lots on it, and the defendant,' being a trespasser, is in no attitude to resist his claim. It' follows that the judgment will be affirmed.