Arnold v. Chas. T. Abeles & Co. , 98 Ark. 367 ( 1911 )

Hart, J.,

(after stating the facts). From the .statement of fact, it is readily apparent .that the title to the lands in question was in the Southern Lumber Company at the time it stopped appellee from cutting and removing the timber therefrom. The lands were forfeited to the State for -the nonpayment of taxes while they were owned by J. C. Griffing. After the period for redemption had expired, they were purchased from the State by M. W. Benjamin; and he obtained a deed therefor from the Commissioner of State Lands. The commissioner’s deed was prima facie evidence of title to the purchaser. Cracraft v. Meyer, 76 Ark. 450; Kirby’s Dig., § 4806. Appellants have not attempted in any way to overcome this presumption of title in Benjamin, and the Southern Lumber Company deraigns title from him.

In 1888 the heirs of J. C. Griffing conveyed the lands to the grantors of appellants; and we hold that they had no title to convey because the land had previously been forfeited to the State for the nonpayment of taxes. It follows that the legal title to said lands was in the Southern Lumber Company and its grantors at the time appellants conveyed the timber on the same to appellee.

The evidence sustains the finding of the court that the lands were wild and unimproved, and the Southern Lumber Company, having the legal'title to the land, had the right to the possession of it.

In the case of Seldon v. Dudley E. Jones Co., 74 Ark. 348, the court held that where land is wild and unimproved actual eviction is not necessary; that “the possession follows the legal title, and a paramount title carries possession with it, amounting to a constructive eviction.”

Counsel for appellants claim that the deed to Bell, one of their grantors, conveyed to him the whole of the west half of section 12, and that Bell went into actual possession of a part of it under color of title to the whole, and must be presumed to have been in the actual possession of the entire half section. It is true that one of the witnesses for appellant does testify that there were five or six acres enclosed on the extreme western side of the northwest quarter of section 12, and that Bell went into possession of it in 1888.

It is conceded that the title to the west half of the northwest quarter, section 12, at that time w.as in Bell; but the title to the east half of the northwest quarter of section 12 at that time was in the grantors of the Southern Lumber Company. In the case of St. Louis, I. M. & S. Ry. Co. v. Moore, 83 Ark. 377, the court said: “When one takes possession of one of two adjoining tracts of land under a deed conveying both tracts to him, if the actual title to the two tracts are in different persons, his actual possession of one tract will not give constructive possession of the-other so as to oust the owner of that tract. The reason for this is that in such a case the possession of one tract is no notice to the owner of the other tract that his land is claimed adversely. If the law was otherwise, one by buying a small tract and taking a deed conveying the adjacent unimproved lands with the tract bought mightj by taking possession of the tract bought, become constructively in the possession of the land without any visible act to notify the owners thereof of such adverse claim.”

Moreover, both the testimony for appellants and appellee shows that the east half of the northwest quarter of section 12, being the land the title to which is in controversy, is wild and unimproved land, and the evidence adduced by appellee tends to show that the whole of the northwest quarter of section 12 was wild and unimproved land. The court, sitting as a jury, found for appellee, and the finding will not be disturbed on appeal.

,The judgment will be affirmed.