Arbuckle v. Matthews

• Decision Date: 12 November 1904
• Citation: 83 S.W. 326
• Parties: ARBUCKLE v. MATTHEWS et al.
• Court: Arkansas Supreme Court

83 S.W. 326

ARBUCKLE v. MATTHEWS et al.

Supreme Court of Arkansas.

November 12, 1904.

Appeal from Craighead Chancery Court; Edward D. Robertson, Chancellor.

Suit by Lulie J. Arbuckle against Leonard Matthews and Edward Whittaker. From a decree in favor of defendants, plaintiff appeals. Affirmed.

Gordon Frierson and Charles D. Frierson, for appellant. J. C. & D. K. Hawthorne, for appellees.

HILL, C. J.

1. On April 20, 1852, the Board of Swamp Land Commissioners at Helena issued a certificate of entry to John W. Lumpkin to the land, inter alia, in controversy. This is the common source of title of appellant and appellees; the appellant contending her title is senior and paramount to appellees. An essential link in the chain of appellant's title is a patent from the state to David C. Cross, as assignee of Lumpkin. That the administrator of Lumpkin assigned it to Cross is shown, the point of dispute being whether Cross obtained the state's title, or an equitable right thereto, before the state issued a patent to John W. Lumpkin, his heirs and assigns, in 1877, which title, if it conveyed anything, has passed to appellees. This latter title purports to convey the state's interest to the original locator, his heirs and assigns, and must prevail, unless appellant shows the legal or equitable title had prior thereto passed from the state, and to a party from whom she deraigns title. This is attempted to be done in this way, as stated by appellant's counsel: "On August 30, 1860, the land agent at Batesville, upon the surrender to him of the certificate of application, issued in lieu thereof patent certificate No. 189 to David C. Cross. Every fact stated in the sentence last above is established by the certified copy of the certificate of application, with the indorsements thereon, which is in evidence, except the name of the person to whom the patent certificate was issued. The certificate of the land agent indorsed upon the original certificate does not state to whom the patent certificate was issued. The plaintiff offers in evidence a copy of an instrument of writing purporting to be this patent certificate. The copy is made from the record of the instrument as the same appears on the record of deeds in Craighead county, Arkansas. The instrument, however, was not entitled to record, and, though the copy is certified by the clerk, we rely upon the other proof in the case touching this point to render the copy admissible." Appellant has made diligent search for the original, and plausibly accounts for the loss of it; but she nor no other witness claim to have ever seen the original. The clerk recorded in 1885 what purported to be the original, and of it he says: "The...