(after stating the facts.) Appellant claims under a deed executed by the clerk of the county court of Cross County on the 17th day of March. 1903. That deed recites that “on the nth day of August, 1883, there was executed and issued by the clerk of the county court of the county of Cross, in the State of Arkansas, a clerk’s tax deed for the following described lands: All of section 3, three, all of section'4, four, and all of section 5, five, all in township six, 6, north range five, 5, east, in Cross County, Arkansas, to one F. H. Porter of the county of Shelby, State of Tennessee;” and it is stated in that deed “that the said tracts of land were sold altogether and for a lump sum, when the fact is they were sold separatelyand the clerk of the county court of Cross County proceeded to correct the error by the execution of the deed on the 17th day of March, 1903. But that deed was made without authority. The statute in such cases provides that “the clerk of the county court of the county in which said lands were sold, upon the presentation to him of such deed, and being satisfied from the records of his office that said tract's of land were sold separately, shall file said deed in his office and cancel the same, and shall thereupon execute in lieu thereof a deed for said land, reciting the execution of the former deed and the date thereof, the error therein, that each tract was sold separately, and the amount for which the same was sold, and in all other respects conform to the requirements of law.” Kirby’s Digest, § 7116. According to this statute, it is only when the clerk is satisfied from the record in his office that the tracts of land were sold separately that he is authorized to execute a deed in lieu of the first, making proper recitáis. In this case there was no such record as to how the lands were sold, and no authority to execute the deed of March 17, 1903, and it is void. In many other respects the records of the county clerk’s office of Cross County fail to show a valid sale of the lands in controversy for taxes of 1866.
The deed of March 17, 1903, having been executed without authority of law, the deed of the nth day of August, 1883, remains in force, and it shows that the lands in controversy were sold together for the taxes of 1866; and, such being the case, the sale is void. LaCotts v. Quertermous, 83 Ark. 174, and cases cited.
It is evident, therefore, that appellant acquired no title by conveyances, the tax deed which is the basis of his title being void.
Appellant contends that he is entitled to hold the lands in controversy under an act entitled “An act for the protection of those who pay taxes on land,” approved March 18, 1899. That act provides: “Unimproved and uninclosed land shall be deemed and held to be in possession of the person who pays taxes thereon if he have color of title thereto; but no person shall be entitled to invoke the benefit of this act unless he and those under whom he claims shall have paid such taxes for at least seven years in succession, and not less than three of such payments must be made subsequent to the passage of this act.” Kirby’s Digest, § 5057. Ts he so entitled to hold?
Appellant and appellee claimed title to the lands in controversy. In the spring or summer of 1900, L. C. Balch, Tonney and Arnold met at the Capital Hotel, in Little Rock, for the purpose of adjusting their differences, and it was proposed to divide the lands equally, and that this proposition should be submitted to Chatfield for approval; Balch not having the authority to make the agreement. In December, 1900, they met again at the Capital Hotel, and it was agreed that a proposition to sell the land, and that each claimant should receive out of the proceeds the taxes paid by it or him, and that the balance be equally divided between them, should be submitted to Chatfield for ratification. Tonney, then agent of appellee, wanted to know what should be done in the meantime about taxes. He said: “I have paid a part of the time, too.” Mr. Balch said: “I think, Mr. Tonney, you had better let things run along the same. You can pay the levee taxes, and we can pay the other taxes. We can do this until we settle up.” And they agreed upon that. This agreement as to taxes was entered into after it was agreed that the proposition as to lands should be submitted to Chatfield. The effect of this was that Balch, who was the agent of Chatfield to pay taxes on his lands in Arkansas, should pay the State and county taxes on the lands in controversy until they should adjust their differences, or until it should be finally decided that they would not do so. Until that time Balch was the agent of both parties to pay the taxes, and the true owner of the land became liable for the taxes when there was a final failure to compromise. Negotiations by letter and telegram to compromise were thereafter entered into, appellant proposing to purchase appellee’s interest in the lands and appellee to sell, and each one rejected the offer of the other until the fourth of March, 1905, when Chatfield withdrew all propositions, and ended negotiations. Until that time Balch was to pay State and county taxes for both parties, and continued to do so until he died in 1904, and the true owner became liable for the full amount of the same. There is no evidence that Chatfield ever accepted or approved the proposition Balch, Tonney and Arnold agreed to submit, but there is evidence that he did not. The negotiations and failure to agree and withdrawal of them corroborate such evidence.
The payment of taxes, (we mean State and county taxes, and not levee assessments) under the agreement of the agents of the parties was not hostile to appellee, and was not a payment of the taxes by appellant within the meaning of the act of March 18, 1899; and the taxes on the lands were not paid for at least seven years in succession, three of which not being subsequent to the passage of the act, so he did not acquire title under that act.
Appellee is the true owner of the lands in controversy. He traces his title through an unbroken chain to the government of the United States.
But appellant says appellee has lost its right to the land by laches. Taches is an equitable defense, and the theory upon which it is sustained in equity is that “nothing can call a court of equity into activity but conscience, good faith and reasonable diligence; where these are wanting, the court is passive, and does nothing.” In this case the appellant has brought-a suit to quiet title, and is indirectly seeking to use it for the purpose of establishing title. See McFarlane v. Grober, 70 Ark. 371; Rowland v. McGuire, 67 Ark. 320. It could not avail him as a defense to the cross complaint; for if it was dismissed he would have to sustain his complaint by proof of its allegations before he could prevail in this suit. Appellee is the owner of the lands. The lands are wild and unoccupied. They are in the constructive possession of the appellee. Appellant has acquired no title to 'them. There is no duty or necessity for resorting to legal or equitable remedies to establish its right until some one threatens to destroy or impair it; and that he has done in this case. See Penrose v. Doherty, 70 Ark. 256.
The decree is affirmed as to all the lands in controversy, except so far as appellee confesses error, and as to the land excepted it is reversed, and the cause is remanded with directions to the court to quiet appellant’s title to it as against appellee.