Little Rock & Fort Smith Railway Co. ex rel. St. Louis, Iron Mountain & Southern Railway Co. v. Rankin , 107 Ark. 487 ( 1913 )

Smith, J.,

(after stating the facts). Under the facts (here stated, Smith’s possession of the land could not be adverse to the railroad company until that company had knowledge of the adverse holding, and the statute of limitations would not begin to run until the possession became adverse. The mere fact that the railroad company had no knowledge.of Smith’s possession is not controlling. If the possession had in fact been adverse for the Mne years of Ms occupancy before the suit was brought, then his title would have been perfected by his possession, and this would be true whether the railroad company had actual knowledge of this possession or not. On the other hand, actual knowledge of Smith’s possession would not have set the statute of limitations in motion unless it was also known that the possession was in hostility to the railroad company. Smith’s .quitclaim deed from Eankin conld convey no greater right than Eankin had, and this was the right to receive a deed upon the payment of the purchase money and the performance of the terms of the bond for title. Smith took with notice of all imperfections in his grantor’s title. Gaines v. Summers, 50 Ark. 322; Haskell v. State, 31 Ark. 91; Miller v. Fraley, 23 Ark. 736.

His possession was that of his grantor and as such was subordinate to appellant’s title. Lewis v. Boskin, 27 Ark. 61; Shall v. Biscoe, 18 Ark. 142; Moore v. Anders, 14 Ark. 628.

In the case of Perry v. Arkadelphia Lumber Co., 83 Ark. 374, the court quoted with approval the following language from the case of Tillar v. Clayton, 76 Ark. 405: “The statute of limitations does not run against a vendor in favor of a vendee, holding under a contract for sale and purchase; nor does it run where the original possession of the holder seeking to plead the statute was in privity with the rightful owner until there be an open and explicit disavowal and disclaimer of holding under that title and assertion of title brought home to the other party.” There are many cases to the same effect.

We are also of the opinion that the appellant’s right to maintain this suit is not barred by laches. “Mere delay is not always laches and laches in the assertion of a right is not always sufficient to defeat it. The laches must be such as to afford a reasonable presumption of satisfaction or abandonment of the claim, or such as to prevent a proper defense by reason of the death of parties, loss of evidence or otherwise.” William Seldens, Exr., v. Kennedy, 7 A. & E. Cases, 879. Davis v. Harrell, 101 Ark. 235, and cases cited. Here the law charged appellee with the knowledge of the bond for title because it was in the chain of his title. Gaines v. Summers, supra; Stephens v. Shannon, 43 Ark. 464. And even though appellant had actual knowledge of Smith’s possession, it had the right to presume this possession was in subordination to its title until knowledge to the contrary was brought home to it, and the continued tax payments by- appellant necessarily indicated it had not abandoned its claim, against the land.

/> The decree of the chancellor is therefore reversed and the canse is remanded with directions to enter a decree for the amount of the purchase money due appeb lant with the interest thereon, and taxes paid by it with interest on each payment from the date it was made, with directions to sell said lands if said sums are not paid within a reasonable time to be fixed by the court.