ARK.] HUTTON V. PEASE. 815 HUTTON V. PEASE. 4-3818 Opinion delivered April 8, 1935. 1. TAXATION—PURCHASER OF TAX TITLE—LIMITATION. —Under Craw-ford & Moses' Dig., § 6947, providing , that no action for recovery of land against one in possession under a donation deed shall be maintained unless plaintiff or his privy was in possession within two years before the action held that the statute began to run from defendant's holding under a donation deed, not from the date of the collector's sale of the hind for nonpayment of taxes. 2. TAXATION—PAYMENT OF TAXES.—Where defendant purchased land from a mortgagor before acquiring a donation certificate, his
816 HUTTON 1). PEASE. [190 purchase of the certificate constituted a redemption of the land from the tax sale, and redounded to the mortgagee's benefit. 3. APPEAL AND ERROR-RIGHT TO APPEAL-ACCEPTANCE OF BENEFITS.- In a suit to foreclose a mortgage, a purchaser of the mortgagor's equity of redemption, by accepting out of the proceeds of the sale an amount adjudged to him for taxes paid will be held to have waived his right -of appeal. Appeal from Benton Chancery . Court; Lee Seanister, Chancellor; affirmed. Rice & ; Rice, for appellant. W. A. Dickson and Price Dickson, for appellee. HUMPHREyS; J. This is an appeal from a decree of foreclosure, of certain lands in Benton 'Comity, Arkansas, to satisfy a mortgage lien thereon, which appellee, in due course, purchased from the original mortgagee. She filed her suit to . foreclose tbe . mortgage lien on August 29, 1.932, and made appellant a party 'because he was claiming fitle to a part of tbe land described in the mortgage under a donation certificate from the State of Arkansas, which . he purchaSed on the 8tb day of August, 1932. , The part o'f the lands claimed by appellant bad been'for-' feited and soh] to the State for the nonpayment Of the taxes for the year 1928, and, after the expiration . of the two-year , period for redemption thereof, had beeh certified to the State by the clerk of said county. During the pendency of the foreclosure 'proceeding, appellant surrendered his donation certificate and purebased said land and procured a deed thereto from tbe State Land Commissioner of date March 20, 1933. The record discloses that appellant conceded during the trial of the cause that the tax sale was not conducted in the maimer prescribed . by law and was void, and that he acquired no title thereto under bis deed from the State, but claimed that he acquired a good title thereto under the donatiOn certificate issued to him on August 8, 1932, because appellee hhd not 'brought her suit to foreclose the mortgage Nir ithin two years from the date of the collector's sale of said teal estate on The seconcl Monday in June, 1929, for the nonpayment of taxes 'for the year 19 98. The trial court canceled the deed from the State of date March 20, 1933, and ruled that appellant acquired no title by reason of his void donation certificate, having
ARK.] 817 failed to complY . with 6675 . of Crawford & Moses' Digest entitling him to a donation deed. Appellee was not required to bring her suit under § 6947 of Crawford & Moses' Digest within two years from the date of the sale of said real estate by the clerk to the State, but within two years from the date of a donation deed, which appellant never Obtained The ruling of the trial court was correct. In the case of M'Cann v. Smith, 65 Ark. 305, 45 S. W. 1057, this court said: "It is the adverse holding under the donation 'deed. for two years that bars. Until the deed is executed, the grantee acquires no right, title or interest in the land and acquires none by adverse pos-. session." It also appears in this record that appellant purchased the lands in question from the owner of the land before-he acquired his 'donation certificate, and, it being his duty to pay the taxes thereon, the purchase: of the donation certificate amounted to the redemption of the land from the tax sale, and necessarily redounded to the benefit Of the . mortgagee. Inman v.. Quiry, 128 Ark. 605; 194 S. W. 858. • • It also appears from this record that the trial court allowed appellant $62.19 for, tbe taxes displaced by reason of his purchase and the subsequent taxes.he paid, and that he accepted same out . of the proceeds of the sale of lands. By accepting the amount .adjudged to him in •the forecloSure decree, he waived the right to appeal from it. Bolen v. Cumby, 53 Ark. 514, 14 S. W. 926; Coston .v. Lee Wilson Company, 109 Ark. 548, 160 S. W. 857 ; Jones v. Hall, 136 Ark. 348, 206 S. W. 671. No error appearing, the decree is affirmed.
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.