(dissenting.) Thornton had a donation deed to the land in controversy, and brought suit to quiet title against appellant, who had no title derived from any source connected with the ownership of the land. The defendant had’ a deed from one party, who had a deed from another party, and no attempt was made to show that any of those parties ever owned or were in possession of the land. Its title began nowhere, and ended at the same place.
Two attacks were made upon plaintiff’s title, one on account of failure, to make the improvements required by the laws donating lands. This court has twice held that such attacks could only be made by the State. Radcliffe v. Scruggs, 46 Ark. 96; Wilson v. State, 47 Ark. 199.
The other attack was upon the regularity of the levy of taxes for the year 1868 for the default in the payment of which the land forfeited to the State.
If the defendant was the priginal owner of the land, or had any interest which would entitle him to redeem from a tax sale, or derived title from some one having such rights, then undoubtedly the plaintiff would have to prove more than a title prima facie good, and would have to show the regularity of the proceedings under which the title vested in the State, his grantor. But such is not this case. When .the plaintiff introduced his donation deed, he made out a case for himself, and could rest. The statute makes this title prima facie good. In a prior litigation between- these parties over a trespass upon this land, this court said: “The donation deed executed by the State of Arkansas to the appellant (the appellee in this appeal) is prima facie evidence of a valid title to the land to him. The land being wild, uncultivated and unoccupied, it vested him with the com structive possession of the same, and this possession is actual for all purposes of remedy until it is interrupted by an actual entry and adverse possession taken by another; and nothing short of what constitutes an actual possession, 'such as creates an ouster, will take from the owner the possession which the law attaches to- the legal title.” Thornton v. St. Louis Refrigerator & Wooden Gutter Company, 69 Ark. 424.
The title, valid on its face, was, as above stated, equivalent to possession, and would prevail until ouster. There was no entry, no ouster, no adverse possession in this case, and no title giving constructive possession to the defendant (appellant here), and under this decision the plaintiff fully made his case with his. title, which is prima facie good. It is true that in the former appeal no attack was made on the assessment which lay behind the title; but if the title was good as against a trespasser merely because it gave constructive possession by. reason of it being prima facie good, it logically follows that it is good against a person not in possession and not in title. Shall such person be allowed to attack this title, without any showing of title or possession in himself, or any one under.whom he claims, by showing some defect in the assessment which occurred thirty-five years ago? If it is open to such attack, then it was idle legislation to make these deeds prima facie evidence of the regularity of all prior proceedings. If any trespasser, or any one holding a deed from a stranger to the title, can put upon the holder of the State’s title the burden of proving regularity in the tax proceedings, then the presumptions in its favor are nugatory. In suits to quiet title the rule as to the title required of the plaintiff to maintain his action is thus stated: “If the cloud raised by the defendant’s unfounded claim were removed, the plaintiff would then have a reasonably clear title.” Lawrence v. Zimpleman, 37 Ark. 643.
With the tramp title of the defendant removed, then the plaintiff would have a title good on its face, and presumptively valid, and for the purposes of remedy equivalent to actual possession, and only subject to defeat by delving into musty records 35 years old, and it seems it ought to be a “reasonably clear title.” This view does not conflict with the rule that he must recover on the strength of his own title, because his title is strong enough to be equivalent to actual possession for all purposes of remedy (so ruled by this court), and actual possession would certainly have defeated this appellant, who had neither title nor possession.
As stated, only the State could contest the validity of Thornton’s right to the donation deed from the State, and only the original owner or. some one having interest in the land ought to be allowed to contest the forfeiture from the owner to the State, and it was so ruled in Georgia and West Virginia. McArthur v. Peacock, 20 S. E. Rep. 215; Hawkinberry v. Snodgrass, 19 S. E. 417.
A suit to quiet title settles the issues between the parties, and the ultimate working out of the reversal herein will be, if the defects in the levy of taxes are proved, to take the land from the party with a title declared by statute prima facie good, and give it to the other litigant, who has no title at all, and I dissent, for the reasons given.