1096 PRIDE V. GIST. , [169 PRIDE V. GIST. Opinion delivered Deceinlier '14, 1925.; TAXATION—RECOVE;RY pl. LAND FROM TAX, PURCHASER—ADVERSE p05-SEMI:W.—Under Crawford & Moses' Dig., § 6947, , providing that no aCtion for the recovery of the pos . SeSsion Of land againit a I:lei-- son ` haVing a tax deed' unless the plaintiff was seized thereof within two years next before commencement of such suit, held that Occasional dikonnected acts of ownership on. the Tait of a tax purchaser, such as cutting timber, for a few days, cutting i a way for a fence and removing a house, are insufficient to dis-' possesS the owner of the land: or bar hi's action for its recoVer • y. • Appeal from Little River Circuit Court ; B. K Judge ; reversed.
PRIDE V. GIST. 1097 :A..D...DuLaney, for appellant: SMITH, J. Appellants, who .owned the legal title to An eighty-acre tract of land in Little , Riverf County,' sued aPpollee in . ejeetinent to recover possession of the rand: The land had forfeited . to 'the State,' and on May : 70_019, . appellee ' , obtained a . deed froin • the State ' Land Commis= SiOner. ."- ThiS snit Was • Originallyfiegun May'31, 1921; and At' the first trial 'there'd in . the • eireuit 'conrt A,.verdid • Was' . direeted-in.. appellee ''A faver upon• the gronnd that the 'Suityhad' n'Ot been 'brought 'within 'two' years . Of; :the datof'The : cdnimiSsiorier's 'deed,. as required by .§. 10149 C. & M. Digest. Upon appeal to this' conrt We held That • the; tait Saleunder.which the , land lorfeited' to the? State Was void, and that § I0119; .. C. M: Digest i :did 'not apply. TherelWas 'some; testimony tending . to show , that 'appolleeS had had twe years`;': pb .g ses s . ion of the land under the Coin-inisSifoner's; de ed,. -and: title. was claimed.hy virtne: Of this Possessibit Tinder . § 6947. C. , ' Sz, M. Digest • • We held that this was A : question of fad for the jury, And we remanded the-. cauSe 'for trial. on the issue of possession: Pride .152 Ark. 368. . . •. ' Upon the' remand Of the , cauSe the caSe was .subinitted tO a . jnry nPen this iSSUe of 'fact, and therelVas • a'verdiet a . n , d itidgment for aPpellee; from Which . i8 'this 'appeal. • NinnerOus Assignmenti of errOr:are dismissed rel ting to the adinission And "ekthision of testimOny at the -trial below; and to the giving 'and refusal to give certain instructions;; •, but We • do not. Consider these questions for the, reason 'that in our opinion •the testimony. did not she*: such posseSsion on the part of appellee as to entitle him to; the benefit of §. 6947; C. '& M. Digest.• This failure of proof was . oned the grounds . of the motion for a •ndw • • . • By "§.,6. 947, 'C. & M. Digest, is pidVided that "'no actien for tbe tecoVery of the peSsession "Of' any' lands against a person hating a tax'deed thereto may be Maintained unless the ' , plaintiff in such suit, 'his aneestor,. prodeceSsor, 'Or grantor, was seized of the lands in queg-
1098 PRIDE V. GIST. [169 . tion within two years next before the commencement of such suit. ,• . . . ,In the former opinion in this case wo cited a number of ;the leading oases in which this section of the statute had been construed; and these cases need,not be reviewed here:. - Their: holding •was. to the . effect that two -years' actual adverse possession under a tax deed • :based upon avoid tax sale would bar the action of the original owner to recover the land, but that this , possession must . be actual and continuous. In- our view:the testimony at the trial; from which this • appeal comes is not . sufficient to met; this requirement. , . , . t • . It was shown that about thirty-five acres of the land. had at tone time been cultivated, but it had not been cultivated: for the eight years immediately , preceding . the trial hi th& court beloW. The land had once been feneed, but the : fence had fallen down and . was not . rebuilt by apPellee. -There wa8 a house on the land; but dt was in. \ bad repair and appellee began in•December;,1920, to teat down and ito •remove the house, and he finished .movhig ?r it in 1921. Appellee cleared a few I Acres' of ail i old field by, cutting the brushes which had grown up ,on it, and he cut and sold. a quantity of timber from it. • After moving the.house appellee .and his son cut out a way,for a fence t ( and : built a .fence on two sides , of the , land,. but no inclo-(: sure was made. , . This was done in the fall of 1920. , . • It appears that appellee 's . first entry on the land S s) was in -the 'fall or winter of 1920, and, of -course, his-pos-.1 session of the land could not have begun prior to that event; and this suit was 'brought within two years of that \ date. Moreover, we think there was never :such posses-! sion of the land as is required by law : to bar the owner of \ the land from attacking a deed based on a void tax sale: There appears -to have been only occasional, disconnected acts of . ownership, such as cutting timber for, a few days, ant d at another time a few days were spent in cutting a way for a fence, and a house was, removed: A :fitful, disconnected possession of this kind is insufficient under
the eases cited in the opinion on the former appeal' to'bar appellants' : suit 'under § 6947, C. ,& M. DigeSt, ald 'the trial court should have so instnicted* the jury. It is stipulated that 'a proper tender Was'made appel-lee before the institution 6f the Snit, and', as the ca, e appears to have been 'fully developed', the judgment 'of the court beloW : will' be reversed; and the cal:1Se remanded with directions to enter a judginent in appellants' favor .fOr the pbsses§ion of the' land. • %, •
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.