(dissenting). I dissent from the majority holding, because I am of the opinion: (1) that the tax sale of the 35-acre tract was void; and (2) that the tax payments were made under a void description and, therefore, could never ripen into title under the Statute (§ 37-103 Ark. Stats.)
As to the first point: the 40-acre tract (NW% NW% Sec. 28) was not a fractional 40-acre tract, but was a full 40-acre tract. .Therefore, the tax sale describing the 35 acres here involved as “Frl. NW% NW% Sec. 28 . . . 35 acres”, was only another way of saying “Pt. NW% NWa/4 Sec. 28 — 35 acres”. Thus the tax sale was void. Graysonia-Nashville Lumber Co. v. Wright, 117 Ark. 151, 175 S. W. 405.
As to the second point: the appellee and his predecessors in title paid taxes on the 35-acre tract for approximately 20 years under the same void description, to-wit: “Frl. NW% NW)4 Sec. 28 ... 35 acres”. Before appellee can claim any benefits under § 37-103 Ark. Stats., the tax payment for each of the 15 years must have been made under a valid and legal description. As previously demonstrated, such valid and legal description does not exist in the case at bar. In Phillips v. Michel, 217 Ark. 865, 233 S. W. 2d 551, the tax payments were made under a “Pt.” description. After holding § 37-103 Ark. Stats, inapplicable, for other reasons, we said:
“In addition, the tax payments by appellants were made under the same insufficient description which rendered their tax deed void.”
Therefore, I am convinced that the majority is in error in allowing the appellee to claim any benefits under § 37-103 Ark. Stats.
Again, the majority says that the appellee should be allowed to introduce oral testimony to identify the 35 acres on which he claims to have paid the taxes. I disagree with that holding, because we have repeatedly held that a “pt. ” description in a tax sale or tax receipt cannot be aided by evidence aliunde to show which particular tract of the full government subdivision was covered by the letters “pt.” These cases are collected in Jones’ “Arkansas Titles”, §§ 251 and 252.
Finally, the majority cites Burbridge v. Bradley Lumber Co., 214 Ark. 135, 215 S. W. 2d 710, to sustain the majority’s holding in the case at bar. The Burbridge case is clearly distinguishable from the case at bar, because in the Burbridge case, the land was in fact a fractional subdivision, whereas, here, the land is a full size governmental subdivision. I pointed out such distinction in my concurring opinion in the Burbridge case, in which I said:
“In the case at bar Burbridge — for more than 7 years —paid the taxes on all of the lands in the frl. SE% of Sec. 23, and such description appears on the tax receipts (which fact distinguishes this case from Boynton v. Ashabranner, 75 Ark. 415, 88 S. W. 566, 1011, 91 S. W. 20); but in Burbridge’s receipts there were the letters ‘R. B. R.’, as previously mentioned. Since these letters are meaningless- — as previously stated — we may disregard them as surplusage; and the result is that Burbridge held under a tax sale and deed validly and legally describing the land, and for more than 7 years paid the taxes on all of the lands in the Frl. SE% of said Sec. 23. The result is, that he is entitled to the benefits of § 8920, Pope’s Digest. ’ ’
The majority opinion in the case at bar was delivered on April 14, 1952, and this dissent is being written on July, 11, 1952. The pressure of Court work prevented the writing of the dissent until the vacation period. It is of some consolation to me to note that in the case of Watson v. Cornish, infra, p. 662, 249 S. W. 2d 123, the opinion was delivered on June 2, 1952, and in that opinion, this Court unanimously recognized that a “frl.” description was good only when the tract was in fact fractional.
For the reasons herein stated, I respectfully dissent.