Biffle v. Jackson

• Decision Date: 21 February 1903
• Citation: 72 S.W. 566,71 Ark. 226
• Parties: BIFFLE v. JACKSON
• Court: Arkansas Supreme Court

72 S.W. 566

71 Ark. 226

BIFFLE v. JACKSON

Supreme Court of Arkansas

February 21, 1903

Appeal from Clay Chancery Court, EDWARD D. ROBERTSON, Chancellor.

Affirmed.

Decree affirmed.

W. E Spence and G. B. Oliver, for appellants.

Parol evidence, or evidence dehors the record, was not admissible to show when the judgment was rendered. 33 Ark. 475; 49 Ark 397; 50 Ark. 338; 11 Ark. 369; 5 Ark. 363; 10 N.E. 191; 12 Rob. 531; 2 Root, 258; Bl. Judg. § 273. Consent may authorize a judgment in vacation. Bl. Judg. § 179; 5 Enc. Pl. & Pr. 1033; 4 Id. 345, 346; 19 Am. Dec. 46; 44 Cal. 84; 48 Ark. 156; 7 N.Y.S. 281; 23 La.Ann. 483; 32 Id. 974; 81 Ill. 103; 21 Ia. 133; 37 Ia. 127; cf. 2 Am. & Eng. Enc. Law (2nd Ed.) 539, 540; 28 Ark. 519. The court had no power to set aside the judgment after the lapse of the term at which the original judgment was rendered.

J. D Block and T. H. Sullivan, for appellees.

The action of the lower court in finding that the decree was rendered in vacation, being supported by evidence, will not be reviewed. 42 Ark. 246; 49 Ark. 465; 44 Ark. 216. Since this evidence is not before the court here, it can not review same. 58 Ark. 134; 45 Ark. 240; 30 Ark. 479. The court had power to correct its record at any time, so as to make it speak the truth. 57 Miss. 730; 1 Fr. Judg. § 121. The record does not show consent to vacation decree. 99 Ill. 600. The recital to that effect in the decree is no evidence of the truth thereof. Bl. Judg. § 388; 31, N. H. 286. Consent can not validate or authorize vacation decree, in the absence of statutory authority. 4 Enc. Pl. & Pr. 345; Bl Judg. § 179; 9 Cal. 173; 34 Id. 329; 40 Id. 183; Fr. Judg. § 121; 4 Col. 109; 58 Ga. 114; 11 W.Va. 673. Bona fides in claim of ownership is necessary to a claim of betterments. 46 Ark. 333; 48 Id. 183; 47 Id. 528.

OPINION

BUNN, C. J.

This is a bill in equity by B. B. Biffle and E. D. Hicks, in the Eastern district of the Clay county circuit court, filed November 14, 1894, wherein the plaintiffs allege that "they are the owners in fee in the following lands, situated in the Eastern district of Clay county and state of Arkansas, to-wit: The north half of the northeast quarter of section fourteen (14) in township twenty (20) north, range eight (8) east, containing 80 acres, more or less." Plaintiffs further state that said land is wild and unoccupied, and that they claim title to said land under the following, to-wit: That on the 29th day of August, 1859, the United States government, by its patent of that date executed and delivered, conveyed said land to W. C. Rayburn; that on the day of , 189 , W. C. Rayburn died intestate, seized of said land, leaving surviving him the following named heirs, to-wit: M. M. Rayburn, Nola Donaldson, Maggie Timberman, Josie E. Panky, Alma F. Stokes and Roxie E. Webb; that on the 22d day of September, 1894, the above-named heirs of W. C. Rayburn, by their deed duly executed and delivered, conveyed said land to these plaintiffs, which deed was filed for record on the 22d day of October, 1894, as will be seen by reference to a copy thereof and certificates thereto attached, herewith filed as exhibit "A" and made part of this complaint. Plaintiffs further allege that on the day of , 18 , Luke Thomas, by his deed of that date, sold and conveyed said land to Fannie C. Jackson, one of the defendants; that said Fannie C. Jackson did not acquire any title to said land by virtue of said purchase, for the reason that said Luke Thomas had no title to the land at the time of the conveyance, nor did he afterwards acquire any; that, under and by virtue of the act of the legislature of 188 , Robert Liddell, as clerk of Clay county, deeded said land to J. J. Allen on the day of , 1885, for the taxes due thereon for the year 1883, and that said Mary Nubauer, one of the defendants, claims title to said land by virtue of the mesne conveyance from said Allen to her; that the sale under which the said Robert Liddell, as clerk as aforesaid, deeded said land to J. J. Allen, and under which the defendant, Mary Nubauer, claims title to said land, is absolutely void, and has been so declared by the supreme court, for the reason of the unequal levy of taxes in Clay county for that year; that all of defendant's deed to said lands are clouds upon the plaintiff's title. Wherefore plaintiffs pray that all of defendant's deeds to said land be cancelled, set aside and held for naught, that plaintiff's title be quieted, and that the title to said real estate be awarded to plaintiffs, and for costs and all other proper relief."

To this complaint, the defendant, Fannie C. Jackson, filed her separate answer and cross complaint in substance as follows, to-wit:

The defendant, Fannie C. Jackson, for her separate answer to the complaint of the plaintiffs and her cross complaint, denies that plaintiffs are the owners in fee of the north half of the northeast quarter of said section 14; denies that said land is wild and unoccupied; admits that on the 28th day of August, 1859, the United States, by patent, duly conveyed said lands to W. C. Rayburn; admits that the said W. C. Rayburn subsequently died intestate, leaving him surviving as his heirs at law the children named in plaintiffs' complaint; and admits that on the 22d day of September, 1894, these children and heirs at law of W. C. Rayburn conveyed this land to plaintiffs herein; but denies that they, the plaintiffs, acquired any title by such conveyance for reason hereinafter to be given. Defendant, further answering, states that prior to his death the said W. C. Rayburn conveyed said lands to Luke Thomas, which deed of conveyance was in due form, regularly executed, aknowledged and delivered and filed for record at Gainesville in the recorder's office of Greene county, which county at that time included the said Eastern district of Clay county, and that said deed and the record thereof were destroyed by fire in the burning of the court house of Greene county on the day of , 18 , and for that reason can not now be produced; that defendant claims title by deed from said Luke Thomas; that, before purchasing said lands from Thomas, her husband, G. M. Jackson, acting for her, was informed by said W. C. Rayburn, then living, that he had conveyed the same to said Thomas, and that he had a good title thereto, and, upon the faith of such representations the said George M. Jackson, acting for her, purchased said land from said Thomas. Defendant, further answering, states that in purchasing said lands she also purchased a large body of other lands adjacent thereto and in the same body, all included in the same deed; and went immediately into possession of the same, and caused to be erected thereon a large saw mill, sheds, fences, ox-lot, stables and houses, and cleared and fenced and cultivated a part of said land; that she had been in possession thereof for more than seven years at the time of the filing of plaintiff's complaint; that the possession was open and notorious; that she exercised ownership also by cutting and causing to be cut saw logs and other timber on said lands, and removing the same therefrom. Defendant admits that the purchase of her co-defendant, Mary Nubauer, was void, for the reason stated in plaintiff's complaint. Wherefore she prays that the complaint be dismissed for want of equity; that plaintiffs' deed from the children and heirs of W. C. Rayburn be declared null and void, and set aside and cancelled; that the title to said lands be declared full and complete, and her title be quited, and for other relief.

The January term, 1896, of said circuit court for the Eastern district of Clay county began on the 20th of January, 1896 and on the 12th day of said term, the same being the 31st day of January, 1896, the following order appears of record among the proceedings of said court, to-wit: "On this day, this cause coming on to be heard, come the parties thereto by their attorneys respectively, and by consent this cause is submitted to the court, and it is agreed that the same be set for argument for Tuesday...