France v. Butcher

McCulloch, C. J. This litigation involves the title to, and right of possession of, lots in the town of Gillett, described as lots 1, 2, 3, 4, 5, and 6, of block 18. Both parties claim under a tax title. Appellant’s claim originated with a tax sale in the year 1872, whilst appellee’s claim originated in a forfeiture to the State in the year 1908 for the taxes of 1907, and a conveyance by the State Land Commissioner to appellee May 19, 1911. Appellee also claims title by adverse possession on account of the payment of taxes continuously for seven years. The action was instituted in the chancery court of Arkansas County by appellant against appellee to cancel appellee’s tax title and recover possession of the land. . • It is alleged in the complaint that the tax sale in 1908, under which appellee claims, was void by reason .of the fact that the six lots were sold en masse. Appellee answered, denying that the tax sale was void, and alleging that the sale under which appellant claims is void on the same ground as the charge in the attack upon the tax sale under which appellee holds. In other words, each charge of invalidity with respect to the tax sales is based on the same ground, and it is conceded now that each of the sales was void. ■ Appellee, in his answer, denied that appellant paid taxes for seven years in succession. Appellee took actual possession of the lots immediately after he received the deed from the State Land Commissioner on May 19, 1911, and fenced the lots and remained in possession up to the commencement of this suit, which was less than two years, however, as the action was commenced in April, 1913. Appellee pleaded the statute of limitations, but it is obvious that the plea is not sustained, for the reason that he did not actually occupy the property as long as two years before the commencement of the action. Appellee has raised no question below as to the jurisdiction of the chancery court. Appellant being out of possession, his proper remedy was to sue to recover possession, but,-if objection had been made below, the action could have been transferred to the law court, and, as no such motion was made, we must treat the question as waived. We come then to the question whether appellant has shown title by adverse possession on account of payment of taxes for seven years. There is a stipulation in the record, the effect of which is to establish the fact that the lots in controversy were “unimpfoved” and “uninclosed” within the meaning of the statute (Crawford & Moses’ Digest, § 6943), which provides that such land “shall be deemed and held to be in possession of the person who pays the taxes thereon, if he have color of title thereto, but no person shall be entitled to invoke the benefit of this act unless h.e and those under whom he claims shall have paid such taxes for at least seven years in succession, and not less than three of such payments must be made subsequent to the passage of this act.” Act March 18, 1899. The lots were sold, as we have already seen, for the taxes of 1907, and appellee paid the taxes subsequent to the acquisition of his tax title,’ hence appellant’s adverse possession must have ripened into title, if at all, prior to the year for the taxes of which the sale was made. In other words, there must have been the requisite payment of taxes to constitute adverse possession prior to the year 1907. The tax sale of these lots in 1872 was to the State. The lots were sold by description as acreage property,being included in a certain subdivision according to the government survey. J. P. Henry purchased that subdivision from the State on June 24, 1875, and that title comes on down to appellant by deeds from Henry to T. H. Leslie January 23, 1879, and Thomas PI. Leslie to PI. Gr. Leslie, September 15, 1882; sheriff’s deed to Robert Poage under execution sale under judgment against H. Gr. Leslie, September '25, 1900, and from Robert Poage to appellant April 5, 1913. Appellant also presents a chain of title beginning with a deed from H. Gr. Leslie to John Wisdom on June 6, 1904; deed of Wisdom to Wil.liam Montgomery Brown, Episcopal Bishop, June 30, 1904, and deed from James R. Winchester, Episcopal Bishop, to appellant, dated December 4,1912. Appellant also shows a deed from Wisdom to himself, dated June 24, 1912. It is apparent from the above recital that the claim under the tax title passed to H. Gk Leslie and then to Poage, under the execution sale in 1900. We are of the opinion that the payment of taxes by appellant’s grantors was not sufficient to constitute an investiture of title by adverse possession, for two reasons. No claim of a' payment prior to the year 1898 can be included as a part of the requisite number of payments to constitute adverse possession, as the proof does not show who paid the taxes for the year 1898 or the year 1905. Records were introduced to show that the taxes were paid for those years, but not the individual who made the payments. The plaintiff must recover, if at all, upon the strength of his own title, and not upon the weakness of the title of his adversary, and the burden of proof is therefore on him to establish the facts which constitute adverse possession. Gaither v. Gage, 82 Ark. 51; Newman v. Peay, 117 Ark. 579; Cotton v. White, 131 Ark. 273. There is no presumption that any one paid the taxes other than the true owner, even though payments for prior and subsequent years were established. ' Another?1 reason why the payment of taxes is not available to appellant as an investiture of title-is that, if all the payments for seven years were in fact made by H. Gr.' Leslie, as claimed by appellant, the payments did not inure to the benefit of appellant, for the reason that Leslie was not privy to the chain of title under which appellant claims at the time all of the respective payments were made.' Leslie’s title was divested by the execution sale in the year 1900, and that title passed under the deed of Poage. Leslie undertook to convey to Wisdom in the year 1904, and whatever interest he had to convey at that time, if' any, passed to appellant under mesne conveyances. Now, the most of the payments made by Leslie which appellant could claim the benefit of would be the payments prior to 1904, for, after that time, Leslie was not privy to the chain of title under • which appellant holds. The evidence shows that the taxes were paid by Leslie for the years 1900 to 1904, inclusive, and, if we could indulge the presumption that Leslie paid also for the years 1905 and 1906, these payments would not be available to appellant, for the reason above stated, that Leslie was not privy to the chain of title after his last conveyance under which appellant holds. It is true that the statute gives the benefit of tax payments made not only by himself, but also for payments made by “those under whom he claims,” but this can only be construed to mean persons in the line of title who made payments while they were claiming title. After parting with the title, a grantor is a stranger to the title, -and payments made by him do not inure to the benefit of grantees under his deed. After parting with title, such a person has no color of title, and therefore his payments avail nothing by way of establishing title by adverse possession. The decree of the chancery court was correct, and the same is therefore affirmed.