St. Louis Refrigerator & Wooden Gutter Co. v. Thornton , 74 Ark. 383 ( 1905 )

Battue, J.,

(after stating the facts.) In the hearing the appellant offered, and the court refused to allow him, to prove that the lands were wild and unoccupied, and had been unoccupied for many years before the commencement of this' suit; and that the county taxes of 1868, for which the lands were sold or forfeited to the State, were not levied until the year i86g. —13 The plaintiff relied solely on the donation deeds executed by the State to himself and wife, insisting that they were prima facie evidence of a good and valid title to the lands, and that defendant ought not to be allowed to contest his title, it not being shown that it or those under whom it claims had any right to or interest in the lands at the time they were sold or forfeited to the State. It seems that the trial court sustained this contention, and upon this theory heard the cause and rendered a decree.

If the evidence offered be true, the sale of the lands to the State was void, because they were sold for county taxes of 1868, which were levied in 1869. Such taxes were levied at a time not authorized by law, and were void. Parr v. Matthews, 50 Ark. 390, 392; Boehm v. Porter, 54 Ark. 665, 668. Why should appellee, claiming under such sale, have the right to set aside another deed equally effective to convey title as his own? How could appellant’s deed cast a cloud upon his title when he had none? Appellant has as much right to use its deed as color of title in acquiring the land by adverse possession or paying taxes thereon for seven consecutive years under the statute as he has. Hence, under the decisions of this court, he “must succeed, if at all, upon the strength of his own title, and cannot rely upon the weakness of his adversary’s.” Lawrence v. Zimpleman, 37 Ark. 644, 647.

In suits to quiet title the plaintiff is not entitled to recover, unless he be in possession, or his title be equitable, or, having the legal title, the land be wild and unoccupied. Matthews v. Marks, 44 Ark. 436. If the land be wild and unoccupied, it is in the constructive possession of the true owner. In this case the appellant is not in the actual or constructive possession of the land — it being wild and unoccupied, and has no title to the same, and he is not entitled to any relief.

But appellee says the donation deeds under which he claims are prima facie evidence of a good and valid title, and appellee has no right to question their validity, because it or its grantors had no title thereto at the time the lands were sold to the State. The statutes of this State provide “that np person shall be permitted to question the tax title acquired by a deed of the clerk of the county court, without first showing that he, or the person under whom he claims title to the property, had title thereto at the time of the sale for taxes, or that title was, obtained from the United States or this State after the sale, and that all taxes due upon the property have been paid by such person, or the, .person under whom he claims title.” Kirby’s Dig. § 7105. In Townsend v. Martin, 55 Ark. 192, this court held that this statute was limited in its operation to deeds made by the clerk, and does not embrace deeds made by the Commissioner of State Lands to lands forfeited for taxes. The Legislature has not seen fit to. protect the deeds of the Commissioner of State Lands in the manner it has the deeds of county clerks. The law has made them only prima facie evidence of title, and we see no reason why the appellant should not be allowed to show those void under which appellee claims in this case. It is not seeking in this case to interfere with appellee or his rights, and it should have the right to defend itself against this suit by showing that it is unfounded, and that plaintiff is not entitled to any relief.

Appellee cites Thornton v. St. Louis Refrigerator & Wooden Gutter Co., 69 Ark. 424, and quotes from it as follows: “The donation deed executed by the State of Arkansas to the appellant is prima facie evidence of a valid title to the land in him. The land being wild, uncultivated and unoccupied, it vested him with the constructive possession of the same, and this possession is actual for all the purposes of remedy until it is interrupted by an actual entry an adverse possession taken by another; and nothing short of what constitutes an actual possession, such as creates an ouster, will take away from the owner the possession which the lazo attaches to the legal title.1’ Thi§ language was-used in reference to the facts in that case. The donation deed of the State was prima facie evidence of title and of constructive possession in that case, there being no evidence that the sale upon which it was based was illegal and void. Had it been shown that it was based upon an illegal sale for taxes, it would not have been evidence of title and of constructive possession of the land. It would have been void.

Let the decree of • the circuit court be reversed, and the cause be remanded with instructions to the court to overrule appellee’s demurrer to appellant’s answer, and to admit the rejected testimony, and to proceed in accordance with this opinion.