Avera v. Banks , 168 Ark. 718 ( 1925 )

Hart, J.,

(after stating the facts). The record shows that Louis J. Banks died intestate on the 19th day of August, 1907, owning 120 acres of land in Ouachita County, Arkansas. He left a widow and no children. His widow, under the statute, became entitled to one-half of the land. Crawford & Moses’ Digest, § 3536. The widow died intestate on May 9,1911, and left surviving her her son, M. J. Avera, and two daughters as her sole heirs at law. The two daughters executed to M. J. Avera a quitclaim deed to their interest in the land in controversy. In June, 1914, the land was sold for the nonpayment of taxes of 1913, and T. C. Joyce bid in the land at the tax sale and received a certificate of purchase. He transferred his certificate of purchase to M. J. Avera, and the latter received a clerk’s tax deed to the land on J une 13,1916. M. J. Avera and appel-lees held the land as tenants in common, and the purchase by M. J. Avera amounted to a redemption from the tax sale. Cocks v. Simmons, 55 Ark. 104, and Inman v. Quirey, 128 Ark. 605.

The land was never in the actual possession of M. J. Avera after he acquired title under the clerk’s tax deed, and the record does not show that he ever acquired title to the undivided one-half interest of appellees by holding adversely to them for the statutory period. This brings us to a consideration of the main question in the case, and that is whether or not appellees are estopped by reason of lacbes from maintaining this action. There is no hard and fast rale as to what constitutes laches. It is well settled that a court of equity may, in the exercise of its own inherent powers, refuse relief where it is sought after undue and unexplained delay, and where injustice would be done in the particular case by granting the relief asked. It is usually said that the two most important circumstances in such cases' are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other in so far as it relates to the remedy. Jackson v. Becktold Printing & Book Mfg. Co., 86 Ark. 591; Davis v. Harrell, 101 Ark. 230; Tatum v. Arkansas Lumber Co., 103 Ark. 251; American Mortgage Co. v. Williams, 103 Ark. 484; and Dickinson v. Norman, 165 Ark. 186.

If a party, knowing his rights, unreasonably delays in asserting them and suffers his adversary to enter into obligations, or in any way by inaction lulls suspicion of his demand, to .the harm of the other, then equity will ordinarily refuse to aid him in the establishment of his claim. It would be contrary to equity and good conscience to enforce such rights when a defendant has been led to believe, by the silence or conduct of the plaintiff, that there would be no assertion of title in opposition to his claim.

In the case at bar there is no excuse whatever for the delay of appellees in asserting their claim. They knew of the death of Louis J. Banks, from whom they claim to inherit, and knew that his widow and her son took charge of his land. If they had been interested in the matter at all,-they could have known, by inquiry, that M. J. Avera and his mother paid-the debts of her husband to the amount of $275, and that the land was not worth more than this amount. ¡When M. J. Avera acauired his tax title, he at once placed it of record. This at least showed his good faith in the matter, and gave appellees constructive notice that he was claiming the iand as Ms own. They never at any time offered to contribute to the payment of the taxes. The land was not worth more than $2 per acre at any time until oil and gas were discovered in the neighborhood, in 1922. M. J. Avera first sold the timber on the land for $75, and the purchaser refused to make the payment and complete the sale. It is true that he sold the timber for $617 in 1922, but this was after oil and gas had been discovered in that vicinity. During all of the period of time from the death of his stepfather, in August, 1907, until the bringing of this suit, on the 11th day of April, 1923, M. J. Avera paid the taxes on the land. During all of this time appellees did not offer to contribute to the payment of the taxes and did not in any way assert any interest whatever in the land. M. J. Avera informed one of the appellees, in the early part of the summer of 1922, that he had acquired a tax title to the land. No denial of his right to the land was asserted, and, under the circumstances detailed, he had a right to assume that appellees had abandoned any claim to the land. After this time he executed seven or eight oil and gas leases to various parties, and the leases contained a covenant of warranty of title in himself. It is fairly inferable that he incurred these obligations upon the faith that appel-lees had abandoned or waived any claim to an interest in the land. He was justified in so believing, from their long continued silence and conduct in the matter. They remained silent when it was their duty to speak. They do not claim to have been misled in any way by any act of M. J. Avera. No excuse whatever is given for their delay in asserting title to the land, and it may be attributable to their own culpable negligence. ’

In this connection it may be stated that M. J. Avera did not take possession of the land by permission of appellees. He occupied no relation of trust or confidence to them, except that he and they owned the land as tenants in common. He acquired his interest by inheritance from his mother, and appellees inherited directly from Louis J. Banks. These facts render appel-lees guilty of laches in not sooner asserting their rights and making it inequitable to divest numerous purchasers of the rights which they had acquired under their oil and gas leases. It will he remembered that what appeared to be a valid tax title to M1. J. Avera in 1916 was of record, and appellants had a right to believe that appellees had acquiesced in its validity by their delay and negligence in failing to have it set aside, or to contribute in any way to the payment of taxes or the amount necessary to have redeemed the land from the tax sale. This tax deed was of record, and was constructive notice to appel-lees as well as to the purchasers, securing rights under the oil and gas leases of the title claimed by M. J. Avera.

Appellees brought this suit against appellants. The relief sought by them is equitable; They ask that numerous oil and gas leases and mineral deeds to said land, executed by M. J. Avera to various persons, be canceled and set aside, in so far as their right and interest in the land are concerned. They also ask for partition of the land. They allege that the leases and mineral deeds to said land executed by M. J. Avera to various persons are a cloud upon the title of appellees. Having sought equitable relief, the doctrine of laches applies, and appellants had the right to interpose it as a defense to the action. Rowland v. McGuire, 67 Ark. 320; Berg v. Johnson, 139 Ark. 243; and Beattie v. McKinney, 160 Ark. 81.

Moreover, the appellees are precluded from maintaining this suit by the decree confirming the tax title of M. J. Avera, which was entered of record in the chancery court on September 18,1922. That decree is regular on its face, and every question with respect to the assessment of the land in controversy, or the nonpayment of taxes, or the regularity of the proceedings of the sheriff and collector, is concluded by it. Worthen v. Ratcliffe, 42 Ark. 330, and Cocks v. Simmons, 55 Ark. 104.

Of course, the decree to confirm the tax title of M. J. Avera might be assailed on the ground that it was obtained by fraud, or, what would amount to the same thing, a concealment of the facts from the court rendering it. The decree of confirmation, however, is not attacked on that ground, and there is nothing in the record to show that it was obtained by fraudulent representations.

The- decree recites on its face that M. J. Avera claims title under a tax deed basis on the sale of the land -for the taxes for the year 1913. He filed the original tax deed with the proceedings. The tax deed recites that T. C. Joyce bid in the land at the tax sale in June, 1914, and transferred his certificate of purchase to M. J. Avera. On the 13th day of June, 1916, the clerk made a tax deed to said M. J. Avera. This deed was duly filed for record on the 7th day of July, 1916. M. J. Avera complied with the statute in every respect in seeking to confirm his tax title.

It is true that the purchase by M.. J. Avera of the certificate of purchase issued to T. 0. Joyce amounted to a redemption of the land from the tax sale, if his tenants in common had elected to so treat it. The sale to him, however, was not absolutely void. It was only voidable at the election of his tenants in common. They might think the land was not worth paying taxes on, or they might have known that Banks owed $275; that the widow and M. J. Avera had paid this debt, and that the land was not worth more than this sum. Hence they had the right to refuse to contribute anything to its redemption from the tax sale. Such an action on their part would amount to an abandonment or waiver of their rights in the land. The record of the tax deed gave appellees constructive notice of its existence. . One of the appellees was actually notified by M. J. Avera, in the first part of the summer of 1922, that he had a tax deed to the land. This was before the decree in “the confirmation suit. Hence it cannot be said that there is anything in the pleadings or proof to show that the confirmation decree was obtained hv fraud.

This court has held that the petition in a suit to confirm a tax title is like a proceeding in rem, where the jurisdiction of the court over the controversy is founded on the presence of the property, and the decree becomes conclusive as well against the absent claimant as against any who may intervene and contest the petitioner’s rights.

The views we have expressed call for a reversal of the decree of the chancery court, and the case will be remanded with directions to dismiss the complaint of appellees for want of equity.