Taylor v. State , 65 Ark. 595 ( 1898 )

Wood, J.,

(after stating the facts). It may be conceded that the certified copy of the original clerk’s certificate of lands forfeited to the state for the non-payment of taxes made by the state land commissioner, which he states was made from the original on file in his office, was properly admitted in evidence, and that it was sufficient to show prima facie title in the state to the lands in controversy. Still, under the facts of this case, that would not enable the state to maintain this action. For it is shown by the uncontradicted proof that there was no certificate attached to the record of advertisement for the sale of the lands showing its publication, as required by Sand. & EL Dig., § 6606. Such a certificate was attached, but it appears that it was done long after the sale occurred, and long after the one who was clerk before and at the time of the sale had gone out of office, and the certificate that appears of record was made in his name and signed by his deputy, Miller, who was clerk at the time the certificate was attached. While the record of publication and the certificate thereof is made evidence of the facts in said list and certificate contained, and while said facts can not be controverted or supplemented by evidence aliunde, it is perfectly legitimate to show that what purports to be the record is supposititious, and that there was in fact none in existence.

As there was no record of the publication of these lands for sale, and no certificate thereof, according to the requirements of Sand. & H. Dig., § 6606, said sale was absolutely void, and the state acquired no title thereunder. Martin v. Allard, 55 Ark. 218.

Now, the statute under consideration only gives the right of action to the owner. Sand. & H. Dig., § 3895. The state in this case, it appears, was not only not the owner, but did not have either the actual or constructive possession of the land. Under the statute of some states, even a void tax title draws after it constructive possession of unoccupied land. But such is not our law. Gates v. Kelsey, 57 Ark. 523; Woolfork v. Buckner, 60 id. 163.

When the sovereign assumes the attitude of a litigant, in the absence of some statutory provisions to the contrary, she is subject to the same rules and principles as apply to other litigants ‘who invoke the aid of the courts and the processes of the law to enforce their rights or redress their wrongs.

This court has repeatedly held that, in order to entitle one to maintain an action of trespass to realty, he must have either the actual or constructive possession thereof. He must have the legal title to, or be in the actual possession of, the land. Ledbetter v. Fitzgerald, 1 Ark. 448; Wilson v. Bushnell, 1 id. 470; Smith v. Yell, 8 Ark. 470; Brock v. Smith, 14 id. 433; McKinney v. Demby, 44 id. 74. See also Merrick v. Britton, 26 id. 505; Gunsolus v. Lormer, 12 N. W. (Wis.) 62; Johnson v. Elwood, 53 N. Y. 432; Thompson v. Burhans, 61 N. Y. 67; and other cases cited in appellant’s brief from other states are instructive.

This statute does not broaden that doctrine. On the contrary, if anything, it nan'ows and restricts it by giving the relief provided to the owner. It requires, according to our decisions, the legal title to put one in the constructive possession of land. See Arkansas cases cited supra. We are of the opinion therefore that, in order to maintain the present action, the state should be required to show that she is the owner of the land upon which the alleged trespass occurred. If she were permitted to maintain the action upon a mere prima facie title, what would hinder the true owner from also maintaining th? action, and thus subjecting the trespasser to two actions and a double recovery for the one wrong?

The state having failed to show that she is the owner of the land, it follows that the court erred in its declarations of law. The judgment is therefore reversed, and the cause is remanded for new trial.

Battle, J., absent.