Chavis v. Henry

It occurs to me that the error in the majority opinion becomes apparent once the facts there recited are clearly understood. They are these. Two tracts of land in the west half, southwest quarter of section 18 were assessed for the taxes of 1932 described as follows: Part west fractional half southwest quarter; fractional west half, southwest quarter.

These two descriptions, together, were intended to describe the fractional west half, southwest quarter, the combined acreage of the two descriptions being 114.92 acres, the first containing 35 acres and the second 79.92 acres. Neither description purported to include all of the west half, southwest quarter. Therefore, the description, fractional west half, southwest quarter of section 18, could not and did not include all the land in the west half, *Page 170 southwest quarter. Under these facts both descriptions were bad.

The fractional southwest quarter, by the Government survey contained 194.92 acres, and by that survey the fractional quarter section was divided into two lots. The east lot, or lot 1, contains 86 acres; the other lot, or lot 2, contains 114.92 acres. Now, 35 acres of this lot 2 sold for the taxes of 1932. The remainder of the lot, or 79.92 acres, was not, therefore, included in the description under which the 35-acre tract was sold. In other words, there were two tracts of land each a part of the west half, southwest quarter, and the description, fractional west half, southwest quarter, under which the 35-acre tract was sold, would be as applicable to the one tract as to the other, and for that reason the description, fractional west half, southwest quarter, is not a description of either the 35-acre tract or the remaining 79.92-acre tract.

It does not appear from the Government survey how lot 2 of fractional southwest quarter was divided into two lots, one containing 79.92 acres, the other 35 acres. These descriptions are the result of private conveyances of the land.

The description "Pt." or "Part" in a tax sale has always been held insufficient and void, for the reason that it describes nothing, and it necessarily imports that it is less than the whole that something remains — and it cannot be known what part is included and intended.

Now, the description "Frl." or "Fractional" may or may not be good. Ordinarily, it imports that the subdivision described is irregular in shape or in acreage. Now, if it purports to describe and include all the subdivision, and there is no other land in the subdivision, the description is good. But if there is a tract of land in the subdivision in addition to another part described as fractional, then both descriptions would be "Part," as the description "Fractional" in the case stated could mean only a part of that subdivision.

That is the case here. The tax sale which the majority say was confirmed was of "fractional west half, southwest quarter, 35 acres," but that description means *Page 171 only a part of the west half, southwest quarter. It cannot mean all of the west half, southwest quarter, for the reason that the tax books and the Government survey as well show that there is another and a larger part of the west half, southwest quarter which was not sold for the taxes.

In effect and in fact, the description in the deed to Chavis from the state conveyed only a part of the west half, southwest quarter, and neither confirmation of the sale upon which this deed was based nor possession under this deed could or would cure the invalidity of the sale.

The majority cite cases such as Ross v. Royal,77 Ark. 324, 91 S.W. 178, (and there are more to the same effect) that the two years' possession provided for by 8995, Pope's Digest, is a statute of limitations, and concludes all inquiry into the validity of the tax sale upon which the deed is based; but the principle is equally as well settled that this possession must be under a deed correctly describing the land sold. Wilson v. Triplett,204 Ark. 902, 165 S.W.2d 943.

In the case of Woodall v. Edwards, 83 Ark. 334,104 S.W. 128, Chief Justice HILL said: "The two-year statute is the shortest limitation statute barring recovery of land. It applies to void tax sales as well as valid ones, yet it must not be extended to deeds void for uncertainty in description of the land conveyed. Such a deed can not aid or explain possession, for it lacks an identification of any land. Neither the owner nor the public were bound to take knowledge of any tax proceedings against land so described and the title alleged to be conveyed by such deed, and hence possession under it would confer nothing more than possession without any deed, and it would require seven years of adverse possession of the land to give title."

For the same reason the confirmation decree did not give title to the 35-acre tract of land, for the reason that no land was sufficiently described in the decree.

For these reasons Mr. Justice ROBINS and the writer think it was error to award title to Chavis to the 35-acre tract. The Chief Justice concurs in this dissenting opinion. *Page 172