{ "id": 1447088, "name": "Rural Realty Company v. Buckner, Special Administrator", "name_abbreviation": "Rural Realty Co. v. Buckner", "decision_date": "1942-01-12", "docket_number": "4-6513", "first_page": "474", "last_page": "481", "citations": [ { "type": "official", "cite": "203 Ark. 474" }, { "type": "parallel", "cite": "158 S.W.2d 17" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "22 Am. St. Rep. 220", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": 0 }, { "cite": "14 S. W. 96", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "53 Ark. 400", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1911695 ], "opinion_index": 0, "case_paths": [ "/ark/53/0400-01" ] }, { "cite": "31 Ark. 272", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1879319 ], "opinion_index": 0, "case_paths": [ "/ark/31/0272-01" ] }, { "cite": "20 S. W. 600", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "56 Ark. 485", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1326059 ], "opinion_index": 0, "case_paths": [ "/ark/56/0485-01" ] }, { "cite": "157 S. W. 2d 201", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1447067 ], "opinion_index": 0, "case_paths": [ "/ark/203/0270-01" ] }, { "cite": "201 Ark. 802", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724581 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/201/0802-01" ] }, { "cite": "198 Ark. 740", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1459771 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/198/0740-01" ] }, { "cite": "30 Ark. 44", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1881141 ], "opinion_index": 0, "case_paths": [ "/ark/30/0044-01" ] }, { "cite": "157 S. W. 2d 16", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1446942 ], "opinion_index": 0, "case_paths": [ "/ark/203/0176-01" ] }, { "cite": "199 Ark. 1005", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1456594 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/199/1005-01" ] } ], "analysis": { "cardinality": 695, "char_count": 14363, "ocr_confidence": 0.556, "pagerank": { "raw": 9.377174822203975e-08, "percentile": 0.5150705697513639 }, "sha256": "d58c16881f293b67cf48a164ac3aace77fa54e85a457faa1423f7004cae6ab36", "simhash": "1:8f4e9cf5324191e9", "word_count": 2454 }, "last_updated": "2023-07-14T23:00:45.785345+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Rural Realty Company v. Buckner, Special Administrator." ], "opinions": [ { "text": "Griffin Smith, C. J.\nRural Realty Company, a corporation, sued on five notes of $320 each, executed by John H.' and James M. Buckner in 1936, representing balance due on purchase price of sixty acres. As security the Buckners conveyed the lands to Roy Church in trust. Prayer of the complaint was that a lien be declared, with decree of foreclosure.\nJohn H. Buckner\u2019s separate answer was filed Januhry 8,1940, by his attorney, Prank C. Douglas, who denied all allegations. It was admitted that on December 5,1929, the realty company sold 40 acres to John H. and James M. Buckner, but there was an averment that the grantor did not at the time of conveyance own the property. The defendants, it was contended, had been deprived of possession, and through wrongful acts of the plaintiff had been damaged more than $1,600. Certain payments on the notes were alleged.\nLula Buckner answered separately, adopting the allegations of John H. Buckner; but in addition she alleged purchase by John H. and James Buckner (December, 1929) of the southwest quarter of the southeast quarter. It was insisted that several bales of cotton were delivered to plaintiff in 1931, proceeds of which should have been added to cash payments made by John H. Buckner. There was the further contention that at the time of purchase of the forty acres by her sons, Lula conveyed in trust the south twenty acres of the north half of the southeast quarter. When the indebtedness was renewed in October, 1935, she did not know that title to the forty acres had been forfeited to the state, through non-payment of taxes. Her prayer was that plaintiff be not permitted to fix a lien on her twenty acres; that her sons had paid more than a third of the original debt in respect of the forty acres, and that equity should dismiss.\nJuly 24, 1940, the realty company and Church, trustee, filed a substituted complaint against James M-. and John H. Buckner, Lula Buckner, Lois L. Douglas, and Prank C. Douglas.\nAllegations of pleadings formerly filed were adopted, but in addition it was stated that Lois L. Douglas claimed title to the north half of the southwest quarter of the southeast quarter, and the south half of the southwest quarter of the southeast quarter of section nine, under a deed from the state land commissioner. The state\u2019s title was confirmed by decree of September 24, 1934, under authority of Act 296 of .1929. Ai the time of forfeiture title was in Ranier & Connell Cotton Company by virtue of a commissioner\u2019s deed. The company conveyed to J. C. Ranier and Hugh Connell April 25, 1929, by deed, and these grantees (-Sept. 19, 1929) conveyed to Rural Realty Company. September 5,1929, Rural Realty Company conveyed- to James M. and John H. Buckner. October 25, 1935, the Buckners conveyed to Church, trustee, the southwest quarter of the southeast quarter, and the south half of the south half of the north half of the southeast quarter. Adverse possession in themselves and their predecessors was alleged by plaintiffs for more than twenty years, \u201cexcept during the past year or more. \u2019 \u2019\nThe .complaint enumerated eighteen reasons why sale of the land was. void. Therefore, it is contended, Lois L. Douglas did not acquire title through the state\u2019s deed.\nNovember 18, 1937, Frank C. and Lois L. Douglas conveyed to B. A. Lynch, trustee for Winnie E! Reynolds, to secure an indebtedness of $750.\nAll of the conveyances in derogation of the realty company\u2019s interests were alleged to be clouds upon the company\u2019s title. There is the statement that tender was made to Lois L. Douglas July 23, 1940, \u201cin an amount sufficient to take care of any expenses, taxes and improvements in connection with the state tax title she claims on the 40-acre .tract heretofore described.\u201d The tender was ' declined.\nPrayer of the substituted complaint was for judgment against James M. and John H. Buckner, Mable Buckner, and Lula Buckner, for $1,600, as heretofore mentioned, with other items; for foreclosure of the trust deed; and that the amount to which Lois L. Douglas was entitled be determined.\nMrs. Douglas filed answer and cross complaint August 22, 1940. All allegations were denied. Affirmatively, she alleged that the north half of the southwest quarter of the southeast quarter, and the south half of the southwest quarter of the southeast quarter of section nine were subject to general state and county taxes for 1926; that the land was sold to the state in regular manner, duly confirmed, and legally purchased by her. It was also averred that the proceeding constituted a collateral attack on the confirmation decree.\nAfter receiving the state deed February 3, 1936, Mrs. Douglas claims she immediately took possession by tenant. This possession continued without question or interruption for more than two years. She also alleged that the south half of the southwest quarter of the southeast quarter became delinquent in 1926 for betterments due Drainage District No. 17, and that in consequence of suit by the district\u2019s commissioners the lien was foreclosed, with purchase by the district, and sale to her. The amount expended for all purposes incidental to the land was itemized as $1,180.42.\nSeparate answer was filed by Winnie E. Reynolds. The loan heretofore mentioned was alleged to have been made November 18, 1937, secured by deed in trust covering the forty-acre tract.\nIn an amended answer the Buckners claimed that Rural Realty Company (Dec. 5,1929), for a consideration of $1,810, conveyed by warranty deed to James M. and John H. Buckner the southwest quarter of the southeast quarter of section nine. Cash paid was $10, the balance having been evidenced by five notes of $360 each. A vendor\u2019s lien was retained. Following default, renewal notes were executed October 25, 1935. This is the series of $320 notes referred to in the first paragraph of this opinion, and they were given in renewal of unpaid indebtedness secured by vendor\u2019s lien on the southwest quarter of the southeast quarter of section nine. The Buckners contend that when the transaction was consummated the realty company did not have title, and such notes are therefore voidable for want of consideration. Cancellation of the notes and deed of trust was prayed.\nIn an amendment to their substituted complaint, the realty company alleges that the claim of Lois L. Douglas to the south half of the southwest quarter of the southeast quarter of section nine under the drainage district\u2019s conveyance was untenable because the transaction constituted a redemption by Mrs. Douglas.\nThe chancellor found against Mrs. Douglas and others in respect of the claim that title passed to the forty acres by reason of the state land commissioner\u2019s deed. There was also a finding that payment by Mrs. Douglas of drainage ditch taxes was a redemption as distinguished from a purchase. .No appeal was taken from these findings; hence, correctness of the court\u2019s ruling is not an issue to be determined here. Baker v. State, 199 Ark. 1005, 137 S. W. 2d 938; Dent v. Adkisson, mite, p. 176, 157 S. W. 2d 16.\nThe decree found that Mrs. Douglas was protected by \u00a7 8925 of Pope\u2019s Digest because, with color of title, she had been in possession more than two years. The statute is printed as a footnote.\nWe think the chancellor\u2019s construction of \u00a7 8925 was erroneous unless the realty company\u2019s attempt to foreclose its lien was \u201can action for the recovery of land or for the possession thereof.\u201d The statute has been in effect since January 10, 1857.\nThe realty company conveyed in 1929, and since that time until trial it had been the holder of a vendor\u2019s lien, or was a mortgagee not in possession. As we have already seen, no consideration can be given appellees\u2019 contention that the company sold after a tax forfeiture had destroyed its equitable rights by vesting legal title elsewhere\u2014this for the reason, as the court found, that the state\u2019s title was void, and the drainage district permitted a redemption. Since there was no appeal from these findings, we must' presume that the realty company\u2019s equities were intact, and it had a right to deal with the Buckners, who had the legal title, subject to the liens.\nIn short, appellant only undertook to have the court declare, and then foreclose, its lien.\nA headnote to Wright, Executor, v. Walker, et al., 30 Ark. 44, is: \u201cThe statute requiring suit for the recovery of land sold at tax sale to be brought \u25a0 within two years only applies to suits for the recovery or possession of the land, and not to a proceeding to foreclose a mortgage.\u201d\nUnder our practice foreclosure proceedings are in no sense \u201cactions for the recovery of land or for the possession thereof.\u201d\nSection 8918 of Pope\u2019s Dig\u2019est requires all suits, either at law or in equity, for the recovery of lands, etc., to be brought within seven years. In White v. White, 198 Ark. 740, 131 S. W. 2d 4, the statute was construed to apply only to the recovery of lands, . . and does not govern suits to foreclose mortgages.\u201d The phraseology in \u00a7\u00a7 8918 and 8925 is similar. [See Young v. Blocker, Trustee, 201 Ark. 802, 146 S. W. 2d 902.]\nIn Holliday v. Wade, 117 Fed. 2d 154, the court of appeals for the Fifth circuit construed \u00a7 591 of the General Statutes of Florida, Compiled General Laws of 1927. The enactment (strikingly similar to \u00a7 8925 of Pope\u2019s Digest) provides that \u201cWhen the holder of a tax deed goes into actual possession, occupancy and use of the land embraced in such tax deed, and s\u00f3 continues for four years, no suit for the recovery of the possession thereof shall be brought by a former owner or other adverse claimant, unless such suit be brought within, or prior to, the said period of four years\u201d after the grantee has entered. The holding was that the limitation contemplated by the statute applied to controversies \u201cfounded upon the title to real property,\u201d and suit for the recovery of possession. The court said:\n\u2018 \u2018 In Florida a mortgage conveys no title, but is only a lien. ... A suit to foreclose is not one founded on title, nor for possession. . . . The mortgagee cannot sue for possession, and it is no concern of his whom the mortgagor may admit to possession or who may seize it and thereby acquire as against the mortgagor the right to keep it.\u201d\nHaving reached the conclusion that \u00a7 8925 of Pope\u2019s Digest did not bar appellant\u2019s right to foreclose its mortgage, it follows that the decree, in part, must be reversed. Lois L. Douglas should be allowed credit for the value of improvements she made and taxes paid against which must be charged rents and profits. Wilkinson v. Nottingham, ante, p. 270, 157 S. W. 2d 201.\nThe decree should be in favor of Rural Realty Company for the debt due it, with lien upon the sixty acres. Mrs. Douglas\u2019 lien is prior to that of the realty company. Title to the land remains in the Buckners. Any excess oyer debt and improvements belongs to the Buckners.\nThe decree is affirmed insofar as it avoided the state land commissioner\u2019s deed, and in its holding that payment of betterments to Drainage District No. 17 was a redemption. In other respects it is reversed. The cause is remanded with directions to proceed in a manner not inconsistent with this opinion.\nPrayer was for judgment on' the principal notes, amounting to $1,600, with interest. Maturity of the notes was December 15, 1936, 1937, 1938, 1939, and 1940. The deed of trust given as security contained an acceleration clause, which was invoked. Mable Buckner, wife of James M. Buckner, was made a -defendant, as was Lula Buckner. The land was described as southwest quarter of the southeast quarter, and .the south half of the south half of the north half of the southeast quarter of section nine, township fifteen north, range thirteen west, in Mississippi county.\nThe conveyance was by warranty deed.\nThese payments were: December 12, 1931, $200; April 5, 1932, $250; December 18,1933, $175; November 19,1934, $400; and described the southwest half of the southeast half of section nine, township fifteen north, range thirteen east.\nLula Buckner is the mother of John H. and James M. Buckner.\nAlvin E. Fink, substitute trustee.\nFrank C. and Lois L. Douglas are husband and wife. B. A. Lynch, trustee for Winnie E. Reynolds, and Winnie Reynolds, were made defendants.\nThe state\u2019s deed was dated February 3, 1936, and was based upon sale for nonpayment of state and county taxes for 1926.\nIt was further said: - \u201cThis defendant pleads the statute of limitations as a defense to the attempt by the plaintiff now to claim any rights to redeem said lands from the sale, forfeiture, and confirmation of title in the state.\u201d Pope\u2019s Digest, \u00a7 8,925.\nCondition of the lands when acquired was described, and there was identification of improvements. It was alleged that when title was not questioned after two years, adjoining landowners cooperated in providing drainage.\nAlthough the answer shows that the items aggregate $1,180.42, correct addition seems to be $1,182.42, a difference of $2 in favor of appellee, Lois L. Douglas.\nThe notes were payable December 1, 1930, and on December 1 of each year to and including 1934.\n\u201cNo action for the recovery of any lands, or for the possession thereof against any person or persons, their heirs and assigns, who may hold such lands by .virtue of a purchase thereof at a sale by the collector, or commissioner of state lands, for the nonpayment of taxes, or who may have purchased the same from the state by virtue of any act providing for the sale of lands forfeited to the state for the nonpayment of taxes, or who may hold such land under a donation deed from the state, or who shall have held two years actual adverse possession under a donation certificate from the state, shall be maintained, unless it appears that the plaintiff, his ancestors, predecessors, or grantors, was seized or possessed-of the lands in question within two years next before the commencement of such suit or action,\nSee Act 7, approved January 26, 1937.\nItalics supplied.\nCf. Duke v. State, 56 Ark. 485, 20 S. W. 600; Phelps v. Jackson, Admr., et al., 31 Ark. 272; Kessinger v. Wilson, 53 Ark. 400, 14 S. W. 96, 22 Am. St. Rep. 220.", "type": "majority", "author": "Griffin Smith, C. J." } ], "attorneys": [ "Shane & Fendler, for appellant.", "J. Graham Sudbury, Frank G. Douglas and G. M. Buck, for appellees." ], "corrections": "", "head_matter": "Rural Realty Company v. Buckner, Special Administrator.\n4-6513\n158 S. W. 2d 17\nOpinion delivered January 12, 1942.\nShane & Fendler, for appellant.\nJ. Graham Sudbury, Frank G. Douglas and G. M. Buck, for appellees." }, "file_name": "0474-01", "first_page_order": 492, "last_page_order": 499 }