McFarlane v. Grober , 70 Ark. 371 ( 1902 )

Riddick, J.,

(after stating the facts.) This was an action of ejectment, which was, on motion of the defendant, transferred to the equity docket, and tried as an equity case by the judge of the circuit court. But an examination of the defense set up by the answer shows, as we think, no sufficient ground for the transfer of the case of the equity docket. The defenses set up in the answer were legal defenses. The answer presented no defense calling for equitable relief, and the case should have been tried at law. But, though the plaintiff objected to the transfer of the case to the equity docket, she does not now press that point as ground for reversal. The only substantial thing the transfer to equity effected was to bring the issues of fact presented before the judge for trial, instead of before a jury, and the case is now very much in the attitude of a case at law tried before the judge sitting as a jury, and afterwards appealed to this court.

We have given the case careful attention, and our conclusion is that the finding of the circuit judge to the effect that Emile Grober was the owner of this land at her death, that under the law her father took only a life estate, and that after his death the title vested in Theresa Grober and Rhinehold Grober, the brother and sister of Emile Grober, is sustained by the law and the evidence. Kelley’s Heirs v. McGuire, 15 Ark. 555.

The testimony of Mrs. Matilda Jackson bearing on the execution of a deed from Emile to her father is not convincing to our minds, and we think the circuit judge was justified in rejecting it.

As Theresa Grober was a married woman at the time of her sister’s death, and remained so up to the time of the bringing of her action of ejectment, we think that it is clear she was not barred by the statute of limitations.

The doctrine of laches, invoiced by the defendant, does not apply to a case where the plaintiff is not asking any equitable relief but seeks only to enforce a plain legal title in a court of law, and where her action is not barred bjr the statute of limitations in reference thereto. Rowland v. McGuire, 67 Ark. 320; Wilson v. Nichols, 72 Conn. 173; Broadway Nat. Bank v. Baker, 176 Mass. 294; Wood, Limitations, § 60, note a.

But, whatever view may be taken of that question, the facts and circumstances in proof, we think, fully justified the circuit judge in overruling this defense and finding in favor of the plaintiff on that issue. This disposes of the questions presented by the appeal of the defendant.

As to the cross appeal, we must also say that no ground for reversal is shown. The 40 acres claimed by the defendant were, it is true, forfeited to the state for nonpayment of taxes after the death of Emile and before the expiration of the life estate held by John C. Grober. But neither McFarlane nor Gunter, who purchased this tax title from the state, were in possession of the land, or had any claim to it at the time it was forfeited, nor were they under any obligation to pay the taxes for which it was-sold. Long after this tax sale, and when the title had become vested in the state, Gunter purchased the land from parties holding through conveyances from Grober purporting to convey the title in fee. Gunter believed that he was acquiring the title in fee, but, finding that this 40 acres had been sold to the state for nonpayment of taxes, and that the state was the owner thereof, he purchased it from the state, and afterwards sold it to McFarlane. One in possession of land under claim of title may strengthen his title thereto by the purchase of an outstanding title. Coxe v. Gibson, 27 Pa. St. 160. While a tenant for life whose duty it is to pay the taxes will not be allowed to acquire a title against the owner of the fee by permitting the land to be sold for taxes, — in other words, while one whose duty it is to pay the taxes will not be allowed to profit by a failure to discharge the duty, — yet the rule does not-apply here, for the claim of Gunter to the land was not in recognition of the rights of the plaintiff, but adverse to them. He was not in any way to blame for the forfeiture of the title to the state through the nonpayment of the taxes, and he stands in no such relation to the plaintiff as makes it unjust or inequitable that he should set up against her this title acquired from the state. We therefore think that the contention of the defendant on this point must be sustained. Blackwood v. Van Vleit, 30 Mich. 118; Coxe v. Gibson, 27 Pa. St. 160; Lybrand v. Haney, 31 Wis. 230; Cooley, Taxation (2d Ed.), 508.

Although, for the reason that she was a married woman, the statute of limitations did not bar the right of the plaintiff to recover the undivided half interest in the land owned by her, yet it commenced to run against Rhinehold Grober on the death of the life tenant, John C. Grober, if not before, and the conveyance of Rhinehold to his sister, the plaintiff, did not stop the statute, and the right to recover the undivided interest owned by him was clearly barred before the commencement of this action. On the whole case, we think the judgment should be affirmed, and it is so ordered.