{
  "id": 1545364,
  "name": "Wagner v. Head",
  "name_abbreviation": "Wagner v. Head",
  "decision_date": "1910-04-18",
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  "first_page": "490",
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  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "Wagner v. Head."
    ],
    "opinions": [
      {
        "text": "McCuleoci-i, C. J.\nThis is an action instituted by appellee to recover from appellant a tract of land in Little River County, the title to which he (appellee) claims under mesne convey- ' anees from the United States as swamp and overflowed land, and also under a sale in 1882 by the commissioner of the chancery court in an overdue tax suit. The validity of his title is conceded, but appellant asserts title under a deed executed to him in 1904 pursuant to a sale for delinquent taxes and by adverse possession for two years under said tax deed. The tax sale was void by reason of the fact that the taxes for which the land was sold were paid by the owner. There was a trial before the court sitting as a jury, and a finding against appellant on his plea of adverse possession. He seeks a reversal of the judgment on the alleged ground that the evidence does not sustain the finding.\nAppellee purchased the land in April, 1905, from T. B. Cook, who was the owner and in possession by his tenant, one Harold. Cook built a cabin on the land in the year 1900, and cleared about thirty acres, and had it put in cultivation. Crops were made on it by Cook\u2019s tenants during the years 1901, 1902, 1903 and 1904. Harold was on the land as Cook\u2019s tenant, and he remained on the place as such tenant until the spring of 1905, when Cook sold the land to appellee, but on account of the overflow he was unable to make a crop and moved. No crop has been raised on the place since then. There is evidence to the, effect that before Harold moved off he agreed to hold and occupy the place as appellant\u2019s tenant for the year 1905; but this was never brought to the notice of either Cook or appellee, \u00e1o far as the evidence in this case shows.\nAfter Harold moved off the place, in the spring or summer of 1905, appellant went on it and remained there about three months, but got sick and moved off. This was not brought to the attention of appellee. The place remained vacant until the summer or fall of 1906, when a man named Elliott obtained appellant\u2019s permission for one of his timber cutters to occupy the house on the land under an agreement to repair it. Elliott also applied to Cook for permission to occupy the house, and the latter .informed him that he had sold the land to appellee. The timber cutter moved into, the house in the summer or fall of 1906, and remained there until about February 1, 1907. During all this time the house was in a dilapidated condition, the fences were down, and the place was vacant except the house. It continued to be vacant until the early part of the year 1908, when appellant moved into the house, and very soon thereafter appellee began this suit against him for possession.\nThe evidence does not sustain appellant\u2019s plea of continuous adverse possession for a period of two years. At most, he has proved only fitful acts.of possession, which were never brought to the notice of appellee, and which lacked sufficient continuity to amount to an investiture of title by limitation. Scott v. Mills, 49 Ark. 266.\nIt is further insisted that the action should have been dismissed because of appellee\u2019s failure to file the affidavit required by Kirby\u2019s Digest, \u00a7 2759, to the effect that he had tendered the amount of taxes for which the land had been sold. The taxes had been paid before the sale; therefore no tender was required. Kelso v. Robertson, 51 Ark. 397.\nJudgment is therefore affirmed.",
        "type": "majority",
        "author": "McCuleoci-i, C. J."
      }
    ],
    "attorneys": [
      "L. A. Byrne, for appellant.",
      "/. T. Cowling and James D. Head, for appellee."
    ],
    "corrections": "",
    "head_matter": "Wagner v. Head.\nOpinion delivered April 18, 1910.\n1. Adverse possession \u2014 notoriety and continuity op possession. \u2014 Proof that defendant went into possession of land under a tax title and remained there three months in 1905, and that in the summer or fall of 1906 a timber cutter with defendant\u2019s permission occupied a house on the land for a few months, and that thereafter the place remained vacant until 1908, when defendant moved on the land, and soon afterwards was sued for possession, is insufficient to show that defendant had a sufficiently notorious or continuous possession to amount to an investiture of title, under Kirby\u2019s Digest, \u00a7 5061. (Page 492.)\n2. Ejectment \u2014 recovery oe tax lands \u2014 aeeidavit oe tender oe taxes.\u2014 Kirby\u2019s Digest, \u00a7 2759, providing that no person shall maintain an action for possession of land against a tax purchaser without filing an affidavit of tender of taxes, etc., does not apply where the taxes were paid before the sale. (Page 493.)\nAppeal from Little River Circuit Court; James S. Steel, Judge;\naffirmed.\nL. A. Byrne, for appellant.\nAn affidavit was necessary in order to maintain the action. Kirby\u2019s Dig. \u00a7 2759. Even though the tax deed be void, the holder had been in actual possession for the statutory period. 76 Ark. 447; 71 Ark. 390; 66 Ark. 141; 79 Ark. 194; 80 Ark. 82; 83 Ark. 334.\n/. T. Cowling and James D. Head, for appellee.\nAppellant should have saved exceptions to the court\u2019s ruling on his motion to dismiss. 70 Ark. 418. One who buys land at a tax sale to which he claims title, and which was incumbered with taxes, only removes such incumbrance. 33 Ark. 267; 55 Ark. 104; 56 Ark. 187; 42 Ark. 215; 44 Ark. 504. Appellant did not have the requisite possession. 48 Ark. 278; 27 Ark. 77; 49 Ark. 266."
  },
  "file_name": "0490-01",
  "first_page_order": 512,
  "last_page_order": 515
}