Baxter v. McGee

• Decision Date: 30 March 1936
• Docket Number: No. 10383.,10383.
• Citation: 82 F.2d 695
• Parties: BAXTER v. McGEE et al.
• Court: U.S. Court of Appeals — Eighth Circuit

82 F.2d 695 (1936)

BAXTER v. McGEE et al.^*

No. 10383.

Circuit Court of Appeals, Eighth Circuit.

March 3, 1936.

Rehearing Denied March 30, 1936.

COPYRIGHT MATERIAL OMITTED

Lamar Williamson, of Monticello, Ark. (John Baxter, of Dermott, Ark., and Williamson & Williamson, of Monticello, Ark., on the brief), for appellant.

J. B. Daggett, of Marianna, Ark. (Walter Sillers, of Rosedale, Miss., and J. G. Burke, of Helena, Ark., on the brief), for appellees.

Before STONE, SANBORN, and THOMAS, Circuit Judges.

THOMAS, Circuit Judge.

The appellant brought suit to quiet his title to Montgomery Towhead Island, an island situated in the Mississippi river in Desha county, Ark., and containing 650.41 acres. The appeal is from a decree dismissing appellant's bill of complaint, sustaining a motion to dismiss a petition of intervention and cross-complaint by Grady Miller, receiver of the Southeast Arkansas levee district, and confirming and quieting title in appellee Mrs. George McGee, hereinafter called appellee.

The appellant claims title under an Island deed executed and delivered to him on November 4, 1932, by "The State of Arkansas, by Belva Martin as Commissioner of State Lands." The deed acknowledges payment of a consideration of $813.01 and recites: "Whereas, a survey has been executed and the plat and field notes thereof filed and approved in complete compliance with all of the provisions of said Act, from which it appears that said area `locus in quo,' is in fact an Island formed subsequent to the admission of the State of Arkansas into the Union, formed in the Mississippi River, a navigable stream, in the County of Desha, in the State of Arkansas, and is subject to sale under the provisions of said Act, the undersigned Commissioner expressly finding upon investigation and from evidence that said area is above the mean highwater mark of the river in which it is located, and is accessible to agriculture, and that each and all of the provisions of said Act have been fully complied with."

Authority for the purchase and sale of the island is claimed under Act No. 282 of the Arkansas General Assembly, approved March 21, 1917, the title and sections 1, 4 and 7 of which (Acts 1917, pp. 1468-1470) are as follows:

"An Act to provide for the sale and disposition of islands formed or which may form in navigable rivers or streams of the State which belong to the State of Arkansas, and for other purposes.

"Section 1. That all islands formed or which may form in the navigable rivers or streams of this State, subsequent to the admission of the State of Arkansas into the Union, are hereby declared to be the property of the State and subject to sale and disposition in the manner and form hereinafter provided. * * *

"Section 4. Upon receipt of the field notes and plats as provided in Section 3 hereof and upon their being filed and approved by said Commissioner, said Commissioner shall notify the applicant that said survey has been completed and thereupon issue such muniment of title as is now provided by law for the sale of State lands. * * *

"Section 7. No lands shall be sold or disposed of by the State under the provisions of this Act which are not accessible to agriculture nor which are below mean high water mark of the stream or river in which they are located. Provided that this Act shall not apply to accretion lands that heretofore or may hereafter be formed."

The appellee Mrs. George McGee claims title under a quitclaim deed dated August 25, 1934, from Grady Miller, receiver of the Southeast Arkansas levee district, executed pursuant to an order of court. Said levee district is the successor in interest of the Red Fork levee district of Desha county, Ark., which district, the appellee contends, acquired title by virtue of Act No. 43 of the Arkansas General Assembly, approved March 7, 1899. The title, Preamble and section 1 of said act (Acts 1899, pp. 68, 69) are set out in the margin.^*

The title and section 1 of Act No. 176, approved April 14, 1893 (Acts 1893, p. 308), are also set out in the margin.^**

Grady Miller, the receiver, intervened claiming that the deed from him to Mrs. McGee was given without consideration, that he had no right and the court no authority to direct him to give a deed without consideration to anyone, and that said deed was, therefore, void and should be cancelled. And he asked that title be quieted in him as against both the appellant and appellee.

The first error assigned complains of the ruling of the court dismissing the petition of intervention.

The ruling of the court was right. It leaves the intervener free to institute such action as he may be advised for the assertion of his alleged rights. Intervention is a matter of discretion at most, and, under Equity Rule 37 (28 U.S.C.A. following section 723), should not be permitted unless it is in "subordination to, and in recognition of, the propriety of the main proceeding." It may be that the intervener could have come in as a defendant in response to the published notice but he chose to intervene and claim title as against both plaintiff and defendant. This he cannot do under the rule. Whittaker v. Brictson Mfg. Co., 43 F.(2d) 485, 489 (C.C.A.8).

The trial court correctly found as a matter of law that the appellant must recover, if at all, upon the strength of his own title. Counsel stipulated of record that appellant purchased the island and that the commissioner of state lands delivered to him the deed dated November 4, 1932, referred to above. The appellee, however, contends that the deed is not prima facie evidence of title, and that the burden was upon appellant to prove the truth of the recitations therein. This contention is without merit. Section 4 of Act No. 282 of the Legislature of Arkansas (Acts 1917, p. 1469), which authorizes the conveyance, provides that the commissioner of state lands shall "issue such muniment of title as is now provided by law for the sale of State lands." Although it is not claimed that any irregularity exists in the form of deed given by the commissioner, if there were any such irregularity it is cured by Act No. 25 of the General Assembly of the State of Arkansas approved February 9, 1933 (Acts 1933, p. 59, § 3), wherein it is provided that: "All sales heretofore made by the Commissioner of State Lands under the provision of said Act 282 of the General Assembly of the State of Arkansas for the year 1917, approved March 21, 1917, are hereby confirmed and the title of all purchases under such deeds from the Commissioner of State Lands are hereby quieted, established and confirmed."

The deed being in due form, its status as evidence is covered by section 6594, Crawford & Moses' Digest of the statutes of Arkansas, which is as follows: "Deeds as evidence. The seal of the Commissioner of State Lands, Highways, and Improvements shall be sufficient verification and authentication of the deed or deeds made by him for any class of lands mentioned in this chapter, and such deed or deeds shall be received as evidence of the legal title to such lands in any court in this State." (Italics supplied.)

Our conclusion upon this point is consistent with the decisions of the Supreme Court of Arkansas. See Scott v. Mills, 49 Ark. 266, 4 S.W. 908, 912; Boynton v. Ashabranner, 75 Ark. 415, 88 S.W. 566, 567, 1011, 91 S.W. 20.

The important and determining question involved on this appeal is the claim of the appellee that at the time the deed to appellant was made in 1932 the state of Arkansas had no title to the island to convey. The appellee contends, and the district court found as a fact: "That the State of Arkansas by Act No. 78 of the General Assembly of the State of Arkansas approved April 4, 1901 (Acts 1901, p. 131), Act No. 176 * * * approved April 14, 1893 (Acts 1893, p. 308), and by Act No. 43 * * * approved March 7, 1899 (Acts 1899, p. 68) donated and conveyed all of the title to all of the lands owned by the State of Arkansas * * * situated in Desha County and not embraced within the boundaries of the * * * Laconia and Desha Levee Districts, to the Red Fork Levee District; * * * Therefore * * the State of Arkansas had no title thereto when the Commissioner of State Lands executed said deed to the plaintiff, R. W. Baxter." This finding of the court is assigned as error.

The solution of the problem thus presented requires an examination and interpretation of Acts Nos. 176 and 43. Act No. 78 is no aid in determining the inquiry. That act merely provided a proceeding for confirming title to lands donated by the state to the Laconia, Desha, and Red Fork levee districts, and it is conceded that no steps were ever taken by any of said districts to quiet title to Towhead Island under the provisions thereof. We must confine our examination, therefore, to Acts Nos. 176 and 43.

The words of the statute relied upon by appellee as donating and conveying Towhead Island to the Red Fork levee district in 1899 are found in section 1 of Act No. 43 (Acts 1899, p. 69), and are as follows:

"For the purpose expressed in said act 176, approved April 14, 1893, all the lands or interests therein now belonging to the State, or which the State may acquire an interest in, by reason of forfeiture for the non-payment of taxes in the next three years, and which may be conveyed to the State after two years' right of redemption expires, whether such conveyance be made before or after the three years, be and are hereby donated to the several levee districts as follows: * * *

"All such lands situated in Desha County, not embraced in the Desha and Laconia Districts, are hereby donated to the Red Fork Levee District."

Whether the island was donated by this statute to the Red Fork levee district depends upon the meaning of the words, "All such lands," used in the last-quoted clause. It is conceded by both parties that the words "such lands" in the phrase refers to the lands described in the first part of section 1 quoted above. The...