Winn v. Eickhoff

213 S.W. 405, 139 Ark. 211, 1919 Ark. LEXIS 217

• Court: Supreme Court of Arkansas
• Decided: June 16, 1919
• Status: Published

Opinion

WOOD, J.,

(after stating the facts). The first question presented is whether or not the court erred in refusing to allow the appellant to introduce records attacking the tax title and whether or not the court erred in instructing the jury as above set forth. Section 2743 of Earby’s Digest is as follows:

“The defendant in his answer shall set forth exceptions to any of said documentary evidence relied on by the plaintiff to which he may wish to object, which exceptions shall specifically note the objections taken, and the plaintiff shall in like manner, within three, days after the filing of the answer, unless longer time is given by the court, file like exceptions to any documentary evidence exhibited by the defendant, and all such exceptions shall be passed on by the court, and shall be sustained or overruled, as the law may require; and if any exception is sustained to any such evidence the same shall not be used on the trial, unless the defect for which the exception is taken is covered by amendment.”

The appellant complied with the above statute by setting forth his exceptions to the deed of the State Land Commissioner. There is nothing in the statute which requires that the exceptions to the documentary evidence shall be passed upon before the trial. .

Section 4806 of Kirby’s Digest provides that the deed of the State Land Commissioner shall be prima facie evidence of title to the purchaser. Section 4807 of Kirby’s Digest provides that “such deeds shall be received as evidence in any court in the State.”

Strictly speaking, an exception proper to a deed relates only to defects apparent on the face of the deed. See Ward v. Sturdivant, 81 Ark. 79.

The object of our law making the deeds of the State Land Commissioner prima facie evidence of title and requiring such deeds to be received as evidence in any court in ti^e State is “to relieve the grantee and those holding under him from making proof until evidence is introduced showing or tending to show that the deed conveyed no title. Scott v. Mills, 49 Ark. 266-76.

Under the comparatively recent case of Wolf and Bailey v. Phillips, 107 Ark. 374, we held (quoting syllabus) : “When plaintiff, in an ejectment suit, bases his right of recovery wholly upon the invalidity of the tax sale under which the defendant claims, and alleges such invalidity in his complaint, the allegations continue to be a part of the pleadings after the answer is filed, and the complaint will be held to be a substantial compliance with section 2743 of Kirby’s Digest.”

The same rule will apply to an answer of a defendant which alleges the invalidity of a deed upon which a plaintiff bases his source of title.

The pleadings in this form raise an issue which call for the introduction of evidence and the proper time and place to object to evidence offered, when such is the issue, is at the trial. The court, therefore, could not by any rule for the dispatch of its business deprive the appellant of the right to introduce the testimony at the trial to prove that the appellee’s deed was void. The very issue involved under the pleadings was whether or not the title was vested in appellees ’ decedent under the deed of the State Land Commissioner. This issue could not be disposed of as a preliminary one in advance of the trial.

It follows that the court erred in excluding the evidence offered by the appellant.

But the appellees contend that the undisputed evidence proves that the lots in controversy were unimproved and uninclosed and that Eickhoff acquired title thereto under the act of March 18, 1899 (section 5057 of Kirby’s Digest), by the payment of the taxes for seven consecutive years under his deed which was color of title.

Whether or not city lots come within the purview of the above statute, we need not and do not here decide. For, if it be conceded that such lots were in contemplation of the Legislature when it passed the act, it was a question for the jury, as we view the evidence, whether or not the lots were unimproved and unenclosed. We refrain from setting out and discussing in detail the evidence on this issue and from expressing any opinion upon its weight, for the reason that the ease must be remanded for a new trial.

Suffice it to say, the court was not warranted in assuming as a matter of law that the undisputed evidence proved that the lands at the time Eickhoff obtanied his deed were unimproved and remained so during the seven consecutive years that he paid the taxes.

For the errors in excluding the records offered by the appellant “attacking this tax title” and in instructing the jury to find for the plaintiffs, appellees, as to possession, the judgment is reversed and the cause will be remanded for a new trial.