Ark. Code Ann. § 18-61-106 (2020)

Case Notes

Constitutionality.

Subsection (a) is valid. Ross v. Royal, 77 Ark. 324, 91 S.W. 178 (1905).

Construction.

This section must be strictly construed. McMillen v. East Ark. Inv. Co., 196 Ark. 367, 117 S.W.2d 724 (1938).

Applicability.

This section only applies to an action for the recovery of possession, not to a suit to foreclose a mortgage. Wright v. Walker, 30 Ark. 44 (1875); Gates v. Kelsey, 57 Ark. 523, 22 S.W. 162 (1893); City of Helena v. Hornor, 58 Ark. 151, 23 S.W. 966 (1893); Willingham v. Jordan, 75 Ark. 266, 87 S.W. 424 (1905); Carpenter v. Smith, 76 Ark. 447, 88 S.W. 976 (1905); Dickinson v. Hardie, 79 Ark. 364, 96 S.W. 355 (1906); Bradbury v. Dumond, 80 Ark. 82, 96 S.W. 390 (1906); Gannon v. Moore, 83 Ark. 196, 104 S.W. 139 (1907); Tatum v. Arkansas Lumber Co., 103 Ark. 251, 146 S.W. 135 (1912); Terry v. Drainage Dist. No. 6, Miller County, 206 Ark. 940, 178 S.W.2d 857 (1943).

This section has no application to a case where public lands have been sold for taxes, and they have been afterward entered. Gaither v. Lawson, 31 Ark. 279 (1876).

This section does not apply to a suit to enjoin the execution of a tax deed. Hare v. Carnall, 39 Ark. 196 (1882).

This section applies to infants and others under disability. Sims v. Camby, 53 Ark. 418, 14 S.W. 623 (1890); Sparks v. Farris, 71 Ark. 117, 71 S.W. 255 (1903).

This section did not apply in a case where the widow who was joint tenant with minor children in homestead suffered a forfeiture for nonpayment of taxes as a device to destroy the interests of the minor children. Rowland v. Wadly, 71 Ark. 273, 72 S.W. 994 (1903).

This section does not apply to a sale of land belonging to the state. Brinneman v. Scholem, 95 Ark. 65, 128 S.W. 584 (1910).

This section has no application where the alleged purchaser has no color of title. Sutton v. Lee, 181 Ark. 914, 28 S.W.2d 697 (1930).

This section was not applicable in favor of defendant who purchased land sold for taxes under erroneous double assessment and who had title to and possession for statutory period of adjacent tract under deed from taxpayer's father. Morgan v. Austin, 206 Ark. 235, 174 S.W.2d 562 (1943).

Actions for Recovery of Land.

Suit to recover on notes for balance on purchase price of land, to have a lien declared and to foreclose, was held not an action for the recovery of land within this section. Rural Realty Co. v. Buckner, 203 Ark. 474, 158 S.W.2d 17 (1942).

Donation Deeds or Certificates.

Holder of donation certificate who occupied land adversely for more than statutory period acquired good title notwithstanding the fact that drainage district was holder of record title. Honeycutt v. Sherrill, 207 Ark. 206, 179 S.W.2d 693 (1944).

Improvement Districts.

This section does not afford relief against suit to foreclose prior drainage district tax liens. Miller v. Cache River Drainage Dist., 205 Ark. 618, 170 S.W.2d 371 (1943).

Payment of Taxes.

Possessor's failure to pay subsequent taxes does not operate to deprive him of the benefit of this section nor to question validity of subsequent tax sale. Schuman v. Kerby, 203 Ark. 653, 158 S.W.2d 35 (1942); Sage Land & Lumber Co. v. Hickey, 222 Ark. 147, 257 S.W.2d 941 (1953).

A widow, having what is similar to a life estate in the homestead, has the duty to pay the taxes, and cannot remain in possession and acquire a tax title adverse to the remainderman. Vesper v. Woolsey, 231 Ark. 782, 332 S.W.2d 602 (1960).

Pleading.

An allegation in a complaint that the defendant has been in lawful possession of the land for statutory period is not an admission that the possession was adverse or under claim of ownership under a tax deed and therefore does not show affirmatively that the plaintiff's right of action is barred. Berg v. Johnson, 139 Ark. 243, 213 S.W. 393 (1919).

Nonpossessory suit in equity to cancel alleged void tax sale and donation certificate could not, after decree granting the relief prayed, be converted into an action in ejectment by thereafter filing a motion for a writ of assistance and still be maintained in equity, thus depriving defendant of all rights to have compensation for his improvements made. Patterson v. McKay, 202 Ark. 241, 150 S.W.2d 196 (1941).

Possession.

Actual possession of the plaintiff, his ancestors, predecessors, or grantors under a deed is contemplated. Harvey v. Douglass, 73 Ark. 221, 83 S.W. 946 (1904); Towson v. Denson, 74 Ark. 302, 86 S.W. 661 (1905).

Under this section, actual possession of land taken and held continuously for statutory period under a tax deed bars an action for recovery though the sale is irregular or void for jurisdictional defects. Maywood v. Mayo, 153 Ark. 620, 241 S.W. 7 (1922).

Continuous possession for the statutory period is necessary to sustain title under this section. Pride v. Gist, 169 Ark. 1096, 277 S.W. 870 (1925).

Actual possession during the statutory period of time must be continuous and unbroken. McMillen v. East Ark. Inv. Co., 196 Ark. 367, 117 S.W.2d 724 (1938).

Where complaint to set aside tax deed was not filed until more than two years after date of deed and grantee had held possession of the lot for longer than statutory period under his tax deed, the deed would not be set aside. Bridwell v. Davis, 206 Ark. 445, 175 S.W.2d 992 (1943).

Actual possession of land under deed from the state for over four years before former owner intervened in suit to confirm state title alleging invalidity of tax sale to the state vested a good title as against any claim of ownership by former owner. Standard Sec. Co. v. Republic Mining & Mfg. Co., 207 Ark. 335, 180 S.W.2d 575 (1944).

Where minerals were constructively severed from the soil by mineral deeds and were non-producing, it follows that there was no possession of the minerals by anyone within the purview of this section. Davis v. Stonecipher, 218 Ark. 962, 239 S.W.2d 756 (1951).

In action to quiet title by purchaser at tax sale wherein defendant counterclaimed for cancellation of tax deed, this statute of limitations could have only been invoked by one in actual possession of the land. Alsobrook v. Taylor, 254 Ark. 132, 491 S.W.2d 808 (1973).

Lessor owned disputed mineral interests because a 1958 tax sale of a one-half mineral interest and the accompanying tax deed were void; regardless of when the statute of limitations ran, whatever infringement occurred when the land was drilled was not sufficient to constitute notice of exclusive possession of minerals or an intent to oust the lessor due to co-ownership. SEECO, Inc. v. Holden, 2015 Ark. App. 555, 473 S.W.3d 36 (2015).

—Adverse Possession.

Adverse possession for statutory period by tax purchaser bars original owner. Cooper v. Lee, 59 Ark. 460, 27 S.W. 970 (1894); Woolfork v. Buckner, 60 Ark. 163, 29 S.W. 372 (1895); Finley v. Hogan, 60 Ark. 499, 30 S.W. 1045 (1895).

Adverse possession for statutory period by tax purchaser bars original owner, unless there is a right to redeem. McConnell v. Swepston, 66 Ark. 141, 49 S.W. 566 (1899).

A purchaser at a void tax sale who goes into possession and remains in undisturbed possession for longer than the statutory period acquires title by adverse possession. Black v. Brown, 129 Ark. 270, 195 S.W. 673 (1917).

Actual adverse possession of land taken and held continuously for statutory period under a donation deed bars an action for recovery, even though sale by a collector, through which the state claims title, is void on account of jurisdictional defects. Terry v. Drainage Dist. No. 6, Miller County, 206 Ark. 940, 178 S.W.2d 857 (1943).

This section is a statute of limitations and actual adverse possession under a tax deed from the Commissioner of State Lands vests a good title in the occupying holder of the donation certificate or deed, regardless of any defects in the tax sale under which the state acquired title. Honeycutt v. Sherrill, 207 Ark. 206, 179 S.W.2d 693 (1944).

After purchaser held land adversely under donation for two years, his title became good by limitation and would not be divested out of him because he attempted to purchase from the holder of the record title. Honeycutt v. Sherrill, 207 Ark. 206, 179 S.W.2d 693 (1944).

Where state's deed to mortgagor's son was in effect a redemption by mortgagor, possession of land by son was not adverse under this section. Lewis v. Fidelity Sav. & Trust Co., 207 Ark. 433, 181 S.W.2d 22 (1944).

Title by adverse possession acquired. St. Louis Union Trust Co. v. Hillis, 207 Ark. 811, 182 S.W.2d 882 (1944).

The fact that purchaser and his grantor, who took possession of land under the deed from the state of Arkansas, held exclusive possession of lands and exercised visible and notorious acts of ownership over same, for longer than the statutory period prior to the filing of an action by the plaintiff, was sufficient to give the purchaser title. Pitts v. Johnson, 212 Ark. 119, 205 S.W.2d 449 (1947).

One who took title under a void tax sale, and claimed adverse possession for more than the statutory period, was entitled to only the land which he had actually possessed. Nall v. Phillips, 213 Ark. 92, 210 S.W.2d 806 (1948).

Intent to hold land adversely was not disclaimed where plaintiffs made offer to buy out defendant, if offer stated that plaintiffs were claiming title under tax deed, and were merely offering what it would take to clear title. Cook v. Langhorne, 219 Ark. 443, 242 S.W.2d 838 (1951).

Tax title purchaser could not assert adverse possession as a result of the original owner's tenant having attorned to the tax title purchaser after tax sale in absence of proof that original owner had notice that tenant had attorned to such purchaser or was put on notice that the statute of limitations was running. Laney v. Monsanto Chem. Co., 233 Ark. 645, 348 S.W.2d 826 (1961).

Where testimony showed no plaintiff had ever been in possession of land in question, this section applied and one holding under a state deed adversely for the statutory time had vested title regardless of a defect in the tax sale. Brown v. Masterson, 240 Ark. 880, 402 S.W.2d 666 (1966).

Where the record contained no evidence of notice of any kind to the heirs or their predecessor in title, the defendant's claim to title which rested wholly on a showing of adverse possession following possession by permission would fail. McDowell v. King, 266 Ark. 1005, 589 S.W.2d 594 (Ct. App. 1979).

This section, in essence, shortens the period of limitation for the recovery of lands adversely possessed under deeds based on tax sales to two years, and two years actual adverse possession by the holder of the tax deed is required before the original owner's right to recover the land is barred. Boyd v. Meador, 10 Ark. App. 5, 660 S.W.2d 943 (1983).

Redemption.

Plea of limitations was not available to attorney to whom some cotenants had mortgaged land to secure fee, since his purchase at tax sale of all land was in effect a redemption for the benefit of all co-tenants. Kitchens v. Wheeler, 200 Ark. 671, 141 S.W.2d 34 (1940).

Conveyance of title based upon tax sale to administratrix of the person who owned the lot at the time of the sale operated as a redemption from the sale, the tax title merged into the legal title and her grantees had no tax title which could enable them to claim under the provisions of this section against heirs of the taxpayer. Hofstatter v. Bona, 205 Ark. 729, 170 S.W.2d 1016 (1943).

The fact that this section has no saving clause in favor of infants does not preclude a minor from bringing an action to redeem a homestead from forfeiture after the limitations period as the action is saved by §§ 16-56-116 and 26-37-305. Kendrick v. Bowden, 211 Ark. 196, 199 S.W.2d 740 (1947).

Since the tax title acquired by a widow amounted to a redemption, the statute of limitations on tax sales had no application, nor could a claim of adverse possession for the statutory period be anchored on the tax title. Vesper v. Woolsey, 231 Ark. 782, 332 S.W.2d 602 (1960).

Running of Statute.

The statute of limitations begins to run from the expiration of the period allowed for redemption, not from the date of sale. Cairo & F.R.R. v. Parks, 32 Ark. 131 (1877).

Actual possession under deed sets the statute of limitations in motion. Woolfolk v. Buckner, 67 Ark. 411, 55 S.W. 168 (1900); Hixon v. Fulks, 210 Ark. 204, 194 S.W.2d 870 (1946).

Time is reckoned from date of deed. Wade v. Goza, 78 Ark. 7, 96 S.W. 388 (1906); Hixon v. Fulks, 210 Ark. 204, 194 S.W.2d 870 (1946).

Statute of limitations held not to bar action to recover land. Hurst v. Munson, 152 Ark. 313, 238 S.W. 42 (1922).

Possession by virtue of a purchase at a void tax sale must have been extended or enlarged after the date of the collector's deed before this statute of limitations will begin to run. Sanderson v. Thomas, 192 Ark. 302, 90 S.W.2d 965 (1936).

Action held barred by statute of limitations. Chavis v. Henry, 205 Ark. 163, 168 S.W.2d 610 (1943); Bridwell v. Davis, 206 Ark. 445, 175 S.W.2d 992 (1943); Baum v. Yarberry, 212 Ark. 471, 206 S.W.2d 190 (1947).

This section is a statute of limitations, and begins to run, not from the date of sale, but from the date actual possession is taken under the deed. Terry v. Drainage Dist. No. 6, Miller County, 206 Ark. 940, 178 S.W.2d 857 (1943); Sims v. Petree, 206 Ark. 1023, 178 S.W.2d 1016 (1944); Hoch v. Ratliff, 216 Ark. 357, 226 S.W.2d 39 (1950).

In order for tax title purchaser to assert adverse possession as a result of original owner's tenant having attorned to tax title purchaser after tax sale, the true owner must be put on notice that the two year statute is running in favor of tax title grantee. Laney v. Monsanto Chem. Co., 233 Ark. 645, 348 S.W.2d 826 (1961).

The only way the statute of limitations of this section will run against the owner of mineral rights is for the owner of the surface rights or some other person to take actual possession of the minerals by opening mines and operating them. Walker v. Western Gas Co., 5 Ark. App. 226, 635 S.W.2d 1 (1982).

Period of limitation begins to run, not from the date of the tax deed, but from the date actual possession is taken under it. Boyd v. Meador, 10 Ark. App. 5, 660 S.W.2d 943 (1983).

—Donation.

Possession under donation certificate does not set the statute of limitations in motion. Hagerman v. Moon, 68 Ark. 279, 57 S.W. 935 (1900); Quertermous v. Walls, 70 Ark. 326, 67 S.W. 1014 (1902).

The statute of limitations against an action to recover forfeited lands held under a donation deed does not begin to run until the possession of the defendants begins under the donation deed. Dressler v. Carpenter, 107 Ark. 353, 155 S.W. 108 (1913).

The statute of limitations begins to run from the defendant's holding under a donation deed, not from the date of the collector's sale of the land for nonpayment of taxes. Hutton v. Pease, 190 Ark. 815, 81 S.W.2d 21 (1935).

Validity of Deed or Sale.

A purchaser of land who has been in possession of the land under a tax deed for more than the statutory period acquires title, regardless of the validity of the tax sale. Black v. Brown, 129 Ark. 270, 195 S.W. 673 (1917); Maywood v. Mayo, 153 Ark. 620, 241 S.W. 7 (1922); Pitts v. Johnson, 212 Ark. 119, 205 S.W.2d 449 (1947); Baum v. Yarberry, 212 Ark. 471, 206 S.W.2d 190 (1947); Hoch v. Ratliff, 216 Ark. 357, 226 S.W.2d 39 (1950); Dowd v. Elliott, 220 Ark. 228, 247 S.W.2d 208 (1952).

This section is a statute of limitations, which when applicable concludes all inquiry into the validity of a tax sale where the property sold was sufficiently described. Schuman v. Kerby, 203 Ark. 653, 158 S.W.2d 35 (1942); Hofstatter v. Bona, 205 Ark. 729, 170 S.W.2d 1016 (1943).

Contest of validity of the tax sale is subject to the statute of limitations on action for recovery of land against purchaser at sale by the Commissioner of State Lands. Jaedecke v. Rummell, 207 Ark. 286, 180 S.W.2d 842 (1944).

Debtor who was in possession of the property at issue and who claimed an equitable interest in the property was entitled to challenge the quiet title action asserted by the subsequent purchaser, after that purchaser bought the property in a tax sale and sought to quiet title under § 18-60-601, because the debtor had alleged an equitable interest in the property and the debtor had not received notice of the tax sale. Debtor's claim was not barred by the statute of limitations set forth in § 18-61-106. In re Paro, 362 B.R. 419 (Bankr. E.D. Ark. 2007).

—Color of Title.

Void tax deed is not color of title. Woodall v. Edwards, 83 Ark. 334, 104 S.W. 128 (1907).

—Void Deed or Sale.

One who takes possession of a part of a tract of unoccupied land under a tax deed conveying the entire tract acquired title to the entire tract by limitation after the lapse of the statutory period even though the sale under which the deed was made was void. Earl v. Harris, 121 Ark. 621, 182 S.W. 273 (1915).

The statute of limitations applicable to possession under a tax deed applies to any tax deed which sufficiently describes the land occupied and purports to convey the same, even though the deed is void on its face. Champion v. Williams, 165 Ark. 328, 264 S.W. 972 (1924).

Where tax sale was void because notice did not contain sufficient description, but deed of the Commissioner of State Lands correctly described a portion of the land sold under the void description and there was possession under the donation certificate and deed of more than the statutory period, the donee was protected by this section. Wilson v. Triplett, 204 Ark. 902, 165 S.W.2d 943 (1942).

Tax deed covering sale of mineral interests in certain described land was void where mineral interests in assessment book were indexed alphabetically instead of by land description. Davis v. Stonecipher, 218 Ark. 962, 239 S.W.2d 756 (1951).

This section is applicable to possession under a tax deed which sufficiently describes the land even though such deed is void for other reasons. Sage Land & Lumber Co. v. Hickey, 222 Ark. 147, 257 S.W.2d 941 (1953).

The section runs against void sales as well as voidable or regular sales. Sage Land & Lumber Co. v. Hickey, 222 Ark. 147, 257 S.W.2d 941 (1953).

Deeds to land by the state, though based on void sales, constitute color of title, and actual possession under color of title will bar the owner from maintaining a suit for its recovery unless the suit was brought within statutory time limit. Brandon v. Parker, 124 Ark. 379, 187 S.W. 312 (1916).

A tax deed void for insufficient description is not such color of title as will set in motion the statute of limitations. Halliburton v. Brinkley, 135 Ark. 592, 204 S.W. 213 (1918); Kennedy v. Burns, 140 Ark. 367, 215 S.W. 618 (1919); Goodrich v. Darr, 161 Ark. 514, 256 S.W. 868 (1923); Liggett v. Church of Nazarene, 291 Ark. 298, 724 S.W.2d 170 (1987).

The invalidity of a tax sale does not prevent the tax deed from being color of title in order to apply the statute of limitations. Skelly Oil Co. v. Johnson, 209 Ark. 1107, 194 S.W.2d 425 (1946).

Cited: McCann v. Smith, 65 Ark. 305, 45 S.W. 1057 (1898); Witherspoon v. Johnson, 201 Ark. 100, 144 S.W.2d 39 (1940); Townsend v. Bonner, 205 Ark. 172, 169 S.W.2d 125 (1943); Schuman v. Westbrook, 207 Ark. 495, 181 S.W.2d 470 (1944); Hensley v. Phillips, 215 Ark. 543, 221 S.W.2d 412 (1949); Beck v. DeFir, 227 Ark. 112, 296 S.W.2d 396 (1956); National Property Owners Ass'n v. Hogue, 229 Ark. 743, 318 S.W.2d 151 (1958).