McMillan v. Morgan , 90 Ark. 190 ( 1909 )

Hart, J.,

(after stating the facts.) In the cases of Chapman & Dewey Land Co. v. Bigelow, 77 Ark. 347, and St. Louis Refrigerator & Wooden Gutter Co. v. Thornton, 74 Ark. 383, it was held that in actions to quiet title the plaintiff must succeed, if at all, as in actions of ejectment, upon the strength of his own title, and can not rely upon the weakness of that of his adversary. Tested by this rule,- we are of the opinion that the appellee Morgan was not entitled to prevail in this suit, because he has no -title to the lands in controversy. The evidence of both himself and his grantor, Fagan, shows that he did not purchase them, but purchased a part of the lands upon which Fagan had made improvements and located his homestead. By mistake, the lands in controversary were described in the certificate of homestead entry issued to Fagan. The same mistake was subsequently made in the deed from Fagan to. Morgan, and in the patent from the United States to Fagan. When the deed from Fagan to Morgan was executed, Morgan did not take possession of the lands in controversy, but did take possession of the lands upon which Fagan resided; and which he claimed as his homestead, and made improvements upon them. Both he and Fagan testify that the lands so occupied by him, and not the lands in controversy, were the lands he intended to purchase. When the mistake in description was discovered in 1884, Morgan left the lands on which he resided, and the notes which he had given for the purchase money were returned to him; and. the possession of the 24 acres (the land described in the deed of Fagan to him with -the land in controversy) was restored to Fagan. We think the undisputed evidence shows that Morgan never intended to purchase, and that Fagan never intended to sell, the lands in controversy. The evidence also shows that the execution of the’ deed, too, was a mutual mistake, and that the contract was rescinded as soon as the mistake was discovered. The record shows that the lands in controversy are wild and unimproved, and that Morgan never paid taxes on them, or in any manner attempted to assert title to them, since his rescission of his contract with Fagan and abandonment of whatever interest he had acquired under the deed from him. It necessarily follows from this conclusion as to the facts under the rule above announced that Morgan has no title to the lands, and that his complaint should have been dismissed for want of equity.

This brings us to a consideration of the interest, if any, of the appellee Fagan. Fagan says that he can not read and write. That he did not understand that he was conveying to McMillan the lands in controversy. That in 1883 he had conveyed to Fendley 80 acres of his homestead entry, and that the deed to the same had been lost. He further says that he thought he was only making another deed to this land, and did not know that he was conveying the land in controversy. In this he is flatly contradicted by Fendley and by H. J. Runyan, who took the acknowledgment to the dped. Runyan testified that Fagan on two different occasions before signing the deed talked with him about the propriety of executing it, and also talked with other friends about it. He said: “My recollection is that W. H. Fagan made two trips to Amity and talked with me at two different times before he decided to sign and acknowledge the deed conveying the above land to D. McMillan. I know that he talked with other parties who were his friends, and he talked with J. B. Boyd, who was a notary public here at that time, as to whether it would be improper for him to give a quitclaim deed to this land, he having given a prior deed to it to Thos. T. Fendley. I am quite positive that W. H. Fagan knew at the time that he signed the deed and at the time I took his acknowledgment that it conveyed the land described in said deed. He took several days before signing the deed. My recollection is that it took about a week or ten days.”

Fendley testified that Fagan understood what land he was conveying, and stated that it lay in the hills, and was not worth anything to any one. The other testimony in the case shows that the land was wild and unimproved. That it was not fit for cultivation on acount of being in the hills, and was only valuable for the timber that was on it. That at the time the deed was made to McMillan there was no market for the timber because the land was so remote from a railroad that it was not practicable to use it. After McMillan’s purchase, a railroad was constructed near it, and this fact gave the timber a market value. Up to the time of McMillan’s purchase, Fagan had not thought it of sufficient value to pay taxes on it, or to redeem it from tax sale, nor had any one else considered it of sufficient value to buy it at a sale for taxes. Moreover, Fagan testified: “I have no interest to the land in controversy in this action other than to see that W. S. Morgan should get the land under the deed which I made him.” We think that at the time of McMillan’s purchase the land had no value except a speculative one, and that he is an innocent purchaser for value.

Counsel for appellees contend that the deeds and tax receipts recited in the decree as being a part of the evidence upon which the case was heard bear no file marks, and therefore are no part of the transcript. The complaint alleges that the homestead patent from the United States to W. H. Fagan was executed. The deeds from Fagan to Morgan and from Fagan to McMillan are made exhibits to the complaint, and in that way become a part of the record. American Freehold Land Mtg. Co. v. McManus, 68 Ark. 263.

The undisputed evidence shows that no taxes were paid by appellees on the land after 1884. Hence the contention of appellee in this respect is upon an immaterial matter, and it is not necessary for us to determine it.

It is ordered that the decree be reversed, and that the cause be remanded with directions to dismiss the complaint for want of equity.