#### Hunt v. Boyce.

Opinion delivered February 20, 1928.

*305 E. F. Duncan and J. Paul Ward, for appellant.

John W. Stayton, for appellee.

Hart, C. J.,

(after stating the facts). The paper title of the plaintiff failed as to lot 2 in block 1 of Knight’s Addition to the town of Tuckerman, Arkansas. The plaintiff alleged that Charles Parrott had conveyed this lot to his wife, Martha Parrott, but that the deed had been lost. The record contains no proof that Charles Parrott executed a deed to said lot 2 to Martha Parrott. It does show that 'Charles Parrott orally agreed to con*306vey said lot to Martha Parrott, but died without having-executed the deed. Martha Parrott never entered into possession of the lot.

Equity never enforces a voluntary agreement to convey land where no possession has been taken of the land or valuable improvements made on it. It is only when the donee takes possession and makes valuable and substantial betterments upon the land, in reliance on the donation, that specific performance will be enforced. In such a case the expenditures of the donee supply a valuable consideration, and the possession and betterments constitute such part performance as to take the case out of the statutes of frauds. Young v. Crawford, 82 Ark. 33, 100 S. W. 87; and Murphy v. Graves, 170 Ark. 180, 279 S. W. 359.

The paper title of the plaintiff also failed as to lot 1, in block 1. Martha Parrott had the record title to this lot, and made a deed of trust to John R. Loftin, Jr., trustee, to-secure an indebtedness which she owed A. S.' Lawrence. Default was made in the payment of the indebtedness, land a foreclosure of the deed of trust was had under, the power of sale contained in it. The trustee executed a deed to A. S. Lawrence, who became the purchaser at the foreclosure sale under the power contained in the deed of trust. The amount secured by the deed of trust was $160, and the amount bid by Lawrence at the foreclosure sale under the power contained in the deed of trust was $60. Under § 6807 of Criawford & Moses’ Digest, notices in conformity with any deed of trust as to amounts under $350 may be posted in five conspicuous places in the county, but the statute further provides that notice shall be served in all cases upon the debtor as summons is now served. No service was had upon Martha Parrott, ias required by the statute, and for that reason the sale was invalid. Gleason v. Boone, 123 Ark. 523, 185 S. W. 1093, and Wilkison v. Hudspeth, 134 Ark. 132, 203 S. W. 263. In these and in other cases decided by this court it is *307held that, where the statutory requirements as to making the sale are not complied with, the sale is void.

It is next contended by counsel for the plaintiff that he has acquired title by the payment of' taxes for seven consecutive years, the lands being unimproved. Plaintiff cannot claim to be holding title under Martha Parrott, because, as we have already seen, her title to the lot owned by her was never legally divested, and she never acquird any title to the lot owned by her husband. Plaintiff must therefore iclaim under A. S. Lawrence; who claimed the land by virtue of the trustee’s deed executed to him in 1917. There had been no payment of taxes for seven consecutive years up to that time by the plaintiff. The record shows that the lands were sold in 1920 for the nonpayment of taxes for the year 1919. William M. Biggers, the purchaser at the tax sale, received a tax deed on July 6, 1922. In 1923 he sold one of the lots to Fannie Boyce, and both lots were inclosed by a fence, and have been in the possession of said defendants ever since. Thu® it will be seen that the record does not bear out plaintiff in his contention. On the other hand, the clerk’s tax deed is in regular form, and gave color of title to William Biggers and Fannie Boyce. They-held adverse possession under this tax deed for two years prior to the bringing of this action, and acquired title thereby. Black v. Brown, 129 Ark. 270, 195 S. W. 673; and Culver v. Gillian, 160 Ark. 397, 254 S. W. 681.

Finally it is insisted that the decree should be reversed because the court erred in transferring the case to equity. In the first place, it may be said that the facts in the case are undisputed, and this court has held that a decree in equity will not be reversed, although the case was improperly transferred from law, where, under the law and facts, the judgment, if rendered at law, must necessarily have been the same. Eagle v. Oldham, 116 Ark. 565, 174 S. W. 1176, 1199. To the same effect see Clark v. Spanley, 122 Ark. 366, 183 S. W. 964; and Shapard v. Lesser, 127 Ark. 590, 193 S. W. 262, 3 L. R. A. 247. Moreover, Fannie Boyce asked for a reforma*308tion of the deed to her from "William M. Biggers, and this gave a court of equity jurisdiction in the case.

The result of our views is that the decree of the chancellor is correct, and it will be affirmed.