Ingram v. Luther

J. Fred Jones, Justice. This appeal is from a decree of the Greene County Chancery Court setting aside a previous decree and confirming and quieting title to all that portion of Lots 4, 7 and 8 east of the St. Francis Levee in Section 32, Township 18 North, Range 8 East in Greene County, Arkansas. For convenience these lots will hereafter be referred to by number except where a fuller description is necessary. The first decree in chancery case No. 8366 was entered on December 20, 1961, and confirmed title in the appellant who was the plaintiff in that case. The second decree in chancery case No. 8881 was entered on November 7,1966. This second decree set aside the first decree and confirmed title,in the appellees who were defendants in the first case and plaintiffs in the second case. The entire record of the trial in the first case was made a part of the record in the trial of the second case. On this appeal from the second decree, the appellant relies on the following points for reversal: “1. The .lower court should not have set aside, cancelled and held for naught the decree of the Greene County Chancery Court in Cause No. 8366 because the proof in this case is contrary to the Court’s finding that no service of any kind was had on Troy Luther and Lula Mae Luther, his wife. “2. The lower court should not have decreed that title to all that part of Lots 4, 7 and 8 lying Bast of the St. Francis Levee and Drainage ditch in Section 32, Township 18 North, Range 8 Bast, be quieted in Troy Luther and Lula Mae Luther, his wife, as against Alvin J. Ingram because such finding was contrary to law. “3. Payment of taxes on land under color of title is deemed to be possession. “4. Payment of taxes on unimproved land for a period of fifteen consecutive years creates presumption of color of title. “5. Redemption of land from tax sale is not payment of taxes within the meaning of the law.” The pertinent facts in the record before ns are as follows: In 1940, a Mr. Barnes who owned all of Lots 4, 5, 6, 7 and 8, sold Lots 5 and 6 and all that part of Lots 4, 7 and 8 west of the St. Francis Levee to a Mr. Donaldson.-In 1941, Barnes sold that portion of Lots 4, 7 and 8 east of the levee to a Mr. Austin, and in 1954, appellees purchased Lots 4, 7 and 8 east of the levee from the Austin heirs. Donaldson sold Lots 4, 7 and 8 west of the levee to Hudson, who in turn sold to Kent who quitclaimed to W. T. Kitchen in 1951 under description as follows: “Lots 8, 4, 5, 6 and 7 in accordance with recent survey and plat replatting lands south and east of re-established meander line and north and west of original levee, of Section 32, Township 18 North, Range 8 East.” In 1952, W. T. Kitchen transferred by quitclaim deed this property by this same description to Kitchen Farms Company. In 1958, Kitchen Farms Company transferred to Mrs. Effie C. Kitchen under description as follows : “Lots Four (4), Five (5), Six (6), Seven (7) and Eight (8), according to plat of new survey of 1922, and in what would be section thirty-two (32) if the lines were extended.” In 1959, Effie C. Kitchen sold to appellant, Alvin J. Ingram, under the following description: “Lots 4, 5, 6, 7 and 8 of said Section 32, according to resurvey of 1922.” In November 1959, the appellee, Troy Luther, executed an instrument in form of timber deed, but designated “Bill of Sale,” conveying the timber on that portion of Lots 4, 7 and 8 east of the levee to one William Leach, and Leach proceeded to cut timber using a steel barge and other equipment in the process. In May 1960, appellant Ingram filed a verified complaint in the Greene County Chancery Court against Troy Luther and William Leach alleging ownership in certain described lands in Greene County including “All of Lots 1, 2, 3, 4, 5, 6, 7, 8 and 9 according to plat of new survey of 1922, and in what would be, if the section lines were extended, Section 32.” In deraigning title in his complaint, appellant recited an unbroken chain of deed conveyances from Barnes through Donaldson, Hudson, Kent, W. T. Kitchen, Kitchen Farms, and Effie C. Kitchen. The complaint then alleged that Leach had trespassed and cut timber from the lands described in the complaint under claim of timber deed from Luther, notwithstanding the fact that Leach had been advised that the land from which the timber was cut did not belong to Luther, “and that Troy Luther only claimed that part of Lots 4, 7 and 8 east of the Old St. Francis Levee” (Emphasis supplied). The complaint prayed a restraining order against Leach, a judgment against Leach for $3,750.00 and an order of attachment against the barge and equipment belonging to Leach. The complaint then prayed that the court “. . . enter a decree quieting title to said Lots 4, 5, 6, 7, and 8 in this plaintiff, divesting any right, title or interest in said lots out of the defendant Troy Luther and vesting the title thereto in this plaintiff.” On June 9, 1960, amendment was filed to the complaint alleging payment of taxes for more than fifteen years. On May 27, 1960, a warning order was filed by the chancery clerk warning the defendants to appear within thirty days and answer the complaint of the plaintiff, Alvin J. Ingram. An attorney ad litem was appointed and publication of the warning order was completed on August 10, 1960, but proof of its publication was not filed until December 20, 1961. The attorney ad litem filed his Report on August 10,1960, setting out that on July 8, 1960, he wrote a letter to Bill Leach and “copies of the same letter to Mr. Troy Luther, General Delivery, Marysville, California;” and that the copies to Luther were returned. The copy of the letter was filed with the report and the pertinent parts of the letter are as follows: ‘ ‘ Suit has been filed against you in Chancery Court here in Greene County, Arkansas, by the above named plaintiff, claiming title to certain lands in Greene County, Arkansas, and alleging that you have jointly cut timber on said lands and damaged the plaintiff to the extent of $3,750.00, and has attached a steel barge with all equipment thereon in Greene County. The prayer lof the complaint is that title be quieted in the plaintiff to the lands described in the complaint for judgment against the two of you jointly in the amount of $3,750.00, and for injunction against you enjoining you from further trespassing upon the land. “I am enclosing a copy of the temporary restraining order issued in this case. . .” (Emphasis supplied.) The restraining order did not mention Lots 4, 7 and 8, but only mentioned, “Fractional Section 32 lying south and east of the New St. Francis River Levee and Lots 1, 2, 3, 5, 6 and 9 according to the plat of New Survey of 1922, and which said lots would be in Section 32 if the section line were extended, all in Township 18 North, Range 9 East, Greene County, Arkansas.” (Emphasis supplied.) On January 8, 1961, a warning order was issued warning Lula Mae Luther to appear within thirty days and answer the complaint. One month later, on February 8, 1961, Lula Mae Luther was made a party defendant, by amendment to the complaint, alleging that: “. . .[T]he said Lula Mae Luther is the wife of Troy Luther and that the deed dated November 12, 1954, recorded in Record Booh 126, page 61, of the records of Greene County, Arkansas, wider which the said Troy Luther claimed title, was made jointly to the said Troy Luther and defendant Lula Mae Luther and, therefore, all of the allegations made in the original complaint against Troy Luther are equally applicable to the defendant Lula Mae Luther.” (Emphasis supplied.) The amendment then alleged that Mr. and Mrs. Luther aided and abetted Leach in cutting timber from the lands described in the original complaint and prayed judgment against Mr. and Mrs. Luther for $1,000.00 and for attachment against “. . .all of Lots 4, 7 and 8 resurvey of Section 32, in Township 18 North, Range 8 East, G-reene County, Arkansas, east of the Old St. Francis River Levee.” The attorney ad litem mailed letters to Mrs. Luther c/o Emery Horner, Yuba City, California and e/o General Delivery Marysville, California (the same address he had used six months earlier for Mr. Luther). The (letter mailed to Mrs. Luther imparts exactly the same information to her as the one written to Mr. Luther, including reference to enclosed copy of the temporary restraining order. The amendment to the complaint and the attachment on the land were not mentioned in the letter. The letters mailed to the appellees were not received by them but were returned to the attorney ad litem. No answer was filed by the appellees and on December 20, 1961, hearing was had on appellant’s complaint. The appellant offered proof to the effect that the land involved was wild and unimproved; that taxes had been paid by Kent, W. T. Kitchen, Kitchen Farms, and appellant, from 1950 through 1961, and the chancellor entered a decree finding among other things, “That the plaintiff, Alvin J. Ingram, is the owner of Lots 4, 5, 6, 7 and 8, Section 32, Township 18 North, Range 8 East, in Greene County, Arkansas; that said land is wild and unimproved; that the plaintiff and his grantors have held said land under color of title for more than seven (7) years and have continuously paid the taxes thereon during that time; that there is no adverse occupant of said land; that due notice of the filing of this action has been given as required by law, that Troy Luther and Lula Mae Luther, two of the above named defendants, are non-residents of the State of Arkansas, and although having been duly served, as by law required, came not but made default.” (Emphasis supplied). The chancellor then decreed: “ [T]hat the title to the said land, to-wit: Lots 4, 5, 6, 7 and 8, Section 32, Township 18 North, Range 8 East, Greene County, Arkansas, be and the same is hereby forever quieted and confirmed in the said Alvin J. Ingram, and any claim of defendants Troy Luther and Lula Mae Luther of any interest in said land is hereby cancelled as a cloud upon the title to said land as vested in the plaintiff, Alvin J. Ingram. ’ ’ On February 6, 1963, appellees filed a complaint against appellant to set aside the original decree and to quiet their own title to: “All that portion of Lot 4, Lot 7 and Lot 8 East of the St. Francis Levy [sic] and Drainage Ditch in Section 32, Township 18 North, Range 8 East.” The appellant filed a general denial to the complaint and prayed that the complaint be dismissed and that he be awarded “such general and equitable relief as to which he may be entitled.” On November 7, 1966, after hearing evidence on the issues thus joined, the chancellor set aside the original decree and quieted title in appellees, “for the reason no service of any kind was had on Troy Luther and Lula Mae Luther, his wife, and said decree is void and of no effect.” Appellant obviously attempted to follow Ark. Stat. Ann. § 27-354 (Repl. 1962) in attempting service on ap-pellees. This section provides: “Where it appears by the affidavit of the plaintiff, filed in the clerk’s office at or after the commencement of the action, that he had made diligent inquiry, and that it is his information and belief that the defendant is * * * a non-resident of this state; * * *the clerk shall make and file with the papers in the case, an order warning such defendant to appear in the action within thirty [30] days from the time of making the order.” Ark. Stat. Ann. § 27-357 (Repl. 1962) provides as follows: “A defendant against whom a warning order has been made and published shall, upon completion of the publication of the warning order for the fqur [4] weeks required by law, be deemed to have been constructively summoned upon the date of making the order.” Something more than the mere publication of a warning order is required in subjecting a nonresident, or his interest in land, to the jurisdiction of the court under a proceeding to quiet and confirm title, and the case before us is an excellent example of the good reason why that is so. The rights and procedure for quieting title to lands in Arkansas are set out in Title 34, Chapter 19 of Arkansas Statutes Annotated §§ 34-1901-1925 (Repl. 1962). Section 34-1901 provides that any person claiming to own land, may bring an action to confirm and quiet title by proceeding in the manner set out. Section 34-1902 provides for the filing of petition in the office of the chancery clerk in the county where the land is located, and for the issuance of summons. Ark. Stat. Ann. § 34-1905 provides as follows: “Upon the filing of such petition the clerk of the court shall publish, on the same day of each week, for four (4) weeks in some newspaper published in the county, if one there be, and if not, then in some newspaper having circulation in the county, a notice of the filing of the petition describing the land and the calling upon all persons who claim any interest in the land or lien thereon to appear in said court and show cause why the title of the petitioner should not be confirmed. The chancery court within proper county is hereby authorized and empowered under said notice to find apparent existing liens on said real estate to be barred by the laws of limitation or laches, and decree the cancellation of said liens and the records thereof.” (Emphasis supplied.) Section 34-1906 provides for the hearing, proof and decree “after proof of publication of the notice aforesaid has been filed. . .” (Emphasis supplied.) Section 34-1909 is as follows: “The decree in the cause shall not bar or affect the rights of any person who claims by, through, under or by virtue of any contract with the petitioner, or who was an adverse- occupant of the land at the time the petition was filed, or any person who within seven [7] years preceding had paid the taxes on the land, or a remainderman, unless such person shall have been made a defendant in the petition and personally summoned to answer the same. (Emphasis supplied.) Section 34-1910 provides as follows: “Any person may appear within three [3] years and set aside the decree if he shall offer to file a meritorious defense, and every person laboring under the disability of infancy, lunacy, idiocy, [or] married women under the disability of coverture and those claiming under them may set aside the decree at any time within [3] years after the removal of such disability.” Had appellees received everything mailed to them by the attorney ad litem, they would have only been advised that appellant had filed a suit in Greene County to quiet and confirm title to some unspecified land he owned in that county; that Leach, to whom they had sold some timber, had trespassed on- the land belonging to appellant and had cut some timber therefrom; that appellees were being sued, along with Leach, for damages in trespass; and that Leach was being restrained from cutting timber from the land belonging to appellant and in which appellees had no interest and claimed none. A copy of the complaint was not mailed to appellees, but apparently for the purpose of allaying any curiosity appellees might entertain as to exactly what lands were involved, in the event they should receive the letters, the attorney ad litem enclosed a copy of the restraining order on section 32 east of the new St. Francis River levee and Lots 1, 2, 3, 5, 6 and 9. Appellees’ land east of the old St. Francis River levee was not mentioned in the restraining order, neither was any part of Lots 4, 7 and 8 mentioned in the restraining order or in anything else mailed to appellees. Had ap-pellees seen the warning orders published by appellant, they would have only been informed that they had thirty days in which to answer the complaint filed against them for damages caused by Mr. Leach’s trespass on land belonging to appellant and cutting timber which they did not sell to Leach, and on land never claimed by the appellees. It would appear, from the overall record in this case, that appellant attempted to quiet title to appel-lees’ land by alleging adverse possession through the payment of taxes in a complaint disguised as an adversary proceeding for money judgment in damage for trespass; The record indicates that an effort was ¡made to submerge a quiet title action in a complaint for damages in trespass requiring nothing more than a thirty day warning order for service on appellees, who are out of state owners of the land involved. Instead of doing’ everything possible to advise appellees that a suit had been filed to quiet title in their land, the attorney ad litem appears to have made a concerted effort to avoid doing so, and he made no effort whatever to advise ap-pellees that their title was being questioned. If the attorney ad litem knew that appellant was claiming title to the land involved, the information he mailed to ap-pellees could only have been designed to mislead appel-lees as to the nature of the law suit filed against them, and to lull them into a sense of false security in the event appellees should receive the information he mailed to them. In the amendment to the complaint making Mrs. Luther a party defendant, the complaint even prayed an attachment before judgment against the very land appellant claimed to own in his original complaint. Appellees alleged fraud on the court in that appellant concealed from the trial court the fact known to him that appellees had record title to the property and had paid the taxes thereon. A part of appellant’s verified answer to the complaint in canse No. 8881 is as follows: “In this connection defendant alleges that in the argument to the Court counsel for this defendant stated to the Court that on a part of said area claimed by plaintiff in Cause No. 8366 said parties had on a few occasions attempted to pay taxes on a portion of said land. . .” (Emphasis supplied.) A few excerpts from the testimony of appellant’s own attorney speaks plainly on this point: “Q. Mr. Davis, just tell what efforts you made to locate the defendant in that law suit? A. I was very much interested personally in this property because I represented, me and my firm, represented Mrs. Effie Kitchens who had received from the Kitchens Farm Company, for her stock, one-half interest in the Kitchens estate. She had received all of the land that is shown on Exhibit “A” that we filed here. # * * I handled the sales, personally, of all of that property that Mrs. Kitchens received out of the Kitchens estate. . .Now Dr. Ingram is my son-in-law ancf I prevailed on him to buy this land from Mrs. Kitchens and because of the fact that he is my son-in-law and the further fact that I had gotten him to buy this land, I was vitally interested in the title. I had the abstract made and brought down to date and I had never heard of Troy Luther until a Mr. William Leach started cutting timber over there and Dr. Ingram’s tenant called me and told me. # # # I did know Mr. Luther was paying taxes occasionally and then letting them go and redeeming them. I found that from the record. I knew from the deed from Mrs. Kitchens that Luther was claiming it. Q. At the time you got your deed from Mrs. Kitchens to the lots -that are involved in this law suit, you were on notice that Troy Luther had been paying taxes on these particular lots for more than fifteen years? A. From the standpoint of the record, yes. But from the standpoint of personal knowledge, no. Q. You knew when you filed that law suit Troy Luther had a warranty deed and record vested title to the property in question to he and his wife? A. Certainly I hneiv it at that time. (Emphasis supplied.) Appellant here was his attorney’s son-in-law. He is charged with the knowledge of his attorney. Appellant’s attorney knew from the deed and tax records, that ap-pellees had record title to the property involved and had been paying their taxes thereon for fifteen years when his suit for damages in trespass and to quiet title was filed. He was bound to have known that Kitchens Farms had no title to this land when it was deeded to Effie Kitchens — he represented Effie Kitchens at that time and personally handled the transaction whereby she acquired her deed. If appellant did not know of appellees’ title and continuous payment of taxes when the complaint was filed in case No. 8366, the quiet title portion of that law suit was not such adversary proceeding that would support a confirmation decree on constructive service on an out of state owner without notice, or notice filed, and without personal service. If appellant did have full knowledge of appellees’ record title and payment of taxes, then certainly in the light of the misleading information mailed to appellees by the attorney ad litem, appellant’s statement, through his attorney, to the trial court that appellees “had on a few occasions attempted to pany taxes on a portion of said land” as alleged in his verified answer, was misleading and smacks of fraud, and will not be condoned by this court on appeal, where we try .equity cases de novo. We conclude that the decree entered in case No. 8366, insofar as it confirmed appellant’s title in appel-lees’ land, was void for several reasons. It was void- for the reason that the notice was not published as required by Ark. Stat. Ann. § 34-1905, supra, and as recited in the decree as having been done. The decree.was void because it was rendered before proof of publication of the aforesaid notice had been filed. Even if the notice had been published as required by § 34-1905, supra, and the decree had been rendered after proof of the publication of notice had been filed as provided in § 34-1906, supra, still appellees’ rights would not have been affected by the decree, because appellees had paid the taxes on the land, not only within seven years, but for fifteen years preceding, and they were not personally summoned to answer the petition in which they were made defendants, as provided in § 34-1909, supra. Even if all the statutory requirements had been met and complied with and the first decree had been a perfectly valid decree, still under § 34-1910, supra, ap-pellees had three years from the entry of the decree in which to appear and set aside the decree by offering to file a meritorious defense. Appellant joined the issues by general denial in his answer. The record in the first case was consolidated with the record in the second, and for all practical purposes the separately numbered cases were consolidated at the trial of the second numbered case, and no objections were made by the appellant to this procedure. We are of the opinion that the chancellor was correct in setting aside his original decree. We are also of the opinion that the chancellor’s decree, quieting and confirming appellees’ title to the property involved, is not against the preponderance of the evidence and should be affirmed. Affirmed. Harris, C. J., concurs in the result. BrowN and Byrd, JJ., concur. George Bose Smith and FoglemaN, JJ., dissent.