Goodrich v. Darr

Humphreys, J.

Appellant alleged ownership of an undivided 29/44 interest in the N. E. % of section 30, Tp. 6 N., R. 18 W., in Conway County, Arkansas, containing 104% acres, and brought suit in the chancery court of said county to cancel an alleged void tax deed, executed by the Commissioner of State Lands of Arkansas to appellee, J. E. Darr, of date June 8,1915, in. which it was recited that the lands conveyed were forfeited to the State of Arkansas under description as follows: 29/44 of NE%, section 30, Tp. 6 N., R. 18 W., in Conway County, Arkansas, containing 104% acres, and also to quiet title in her to an undivided 29/44 interest in said land.

Appellee filed an answer denying appellant’s ownership of a 29/44 interest in said quarter section and the invalidity of the tax deed from the State to appellee, J. E. Darr, and pleaded in bar of recovery the two-years’ statute of limitations.

The cause was submitted upon the pleadings and testimony, which resulted in a finding by the court that, at the time of the forfeiture for taxes in 1903, the land belonged to the Goodrich heirs, and that thereafter appellant purchased the interest of the other Goodrich heirs and became the owner of the entire 29/44 interest therein; that the tax deed was void, but that, under § 6947 of Crawford & Moses’ Digest, the two-years’ statute of limitation had run against appellant find barred her from recovery of the land. A decree was rendered dismissing appellant’s bill for want of equity, canceling her deeds to the land and quieting title in appellee, J. E. Darr, to that part of the real estate still owned by him, and in N. W. Black to that part conveyed by J. E. Darr to him, from which is this appeal.

As we read the record and brief of counsel, only four questions are presented to this court for determination:

First, has appellant sufficiently established her title?

Second, if so, is the description in her chain of title sufficiently definite to locate the land? '

Third, is the tax deed based upon a valid forfeiture for the nonpayment of the taxes for the year 1903?

Fourth, will the two-years’ statute of limitation bar a recovery?

(1) Appellant testified that her uncle, Lemuel H. Goodrich, devised her father a life estate in the lands in question, with the remainder over to his children;' that, when her father died, the Goodrich heirs, including herself, became the joint owners thereof, and that she afterwards acquired the interest of the other heirs, who were her sisters, by purchase. The will and deeds from her sisters to herself were introduced in evidence. The will devised all of Lemuel H. Goodrich’s estate, both real and personal, to his executor in trust, with power to sell and convey same, directing that said executor pay the income from the lands and proceeds thereof to his brother, Chester B. Goodrich, during his natural life, and, upon his decease, to divide the real estate or proceeds thereof and all his personal estate among the heirs of the said Chester B. Goodrich. Objection is made to appellant’s, chain of title because the will does not describe the land, and because it was not shown that-he owned the land in question at the time of his death. Appellant’s statement that she and her sisters acquired title to the land by devise from her uncle is tantamount to saying that he owned it at his death.

(2) The suggestion that the description contained in the deeds in appellant’s chain of title is defective in case the description in the tax deed is held to be insufficient, is not tenable. The description 29/44 of N. E. % of section 30, Tp. 6 N., R. 18 W., in Conway County, Arkansas, containing 104% acres, in the deed in her chain of title, means an undivided twenty-nine forty-fourths’ interest therein. Any undivided interest in a definitely described tract of land may be conveyed by the owner thereof to the grantee, without first having same segregated from the other lands in the tract.

(3) In the case at bar the land was described in the tax deed as 29/44 of N. E. % of section 30, Tp. 6 N., E. 18 W., in Conway County, Arkansas, containing 104% acres. It must be presumed that the description in the deed followed the description on the delinquent’list and on the assessment roll. This court held, in the case of King v. Booth, 94 Ark. 306, that the following description in a tax deed was defective and rendered the tax deed void: “4/6 of N. W. % section 24, Tp. 6 N., E. 8 W., situate in the county of White, and State of Arkansas.” As a reason for holding the description defective the court said: “When a part of a tract of land is assessed and sold for the nonpayment of taxes, and the description is not sufficiently definite to locate it with reference to the remaining portions of the tract? the sale will be void.” In other words, under the rule announced, in order to give effect to a tax sale of an undivided share in a particular tract of land for the nonpayment of taxes thereon, the whole tract should be described upon the taxbooks and on the delinquent list, under its proper legal subdivision, and the value and amount of taxes set opposite each share. It will be observed that the description in the tax deed in the case at bar is exactly like the description in the tax deed in the case of King v. Booth, supra. In neither case was the whole land described on the taxbooks and the delinquent list, the several parts valued and the assessment apportioned to the several shares. The rule announced in the Booth case is applicable to the facts in the instant case. The tax deed is therefore void on account of the defective description of the land.

(4) It is unnecessary to set out or discuss the testimony in the case tending to show the extent and duration of appellee’s'possession of the lands, for the two-years’ statute of limitation pleaded by them has no application in cases where the tax deed is void on account of a defective description of the. land forfeited for the nonpayment of taxes. This court said in the case of Halliburton v. Brinkley, 135 Ark. 592, that “a tax deed void for insufficient description is not such color of title as will set in motion the two-years’ statute of limitation provided by § 6947, Crawford & Moses’ Digest.”

For the error indicated the decree is reversed, with directions to enter a decree in favor of appellant in accordance with this opinion.