Boynton v. Ashabranner

• Decision Date: 11 November 1905
• Citation: 91 S.W. 20
• Parties: BOYNTON v. ASHABRANNER.
• Court: Arkansas Supreme Court

91 S.W. 20

BOYNTON v. ASHABRANNER.

Supreme Court of Arkansas.

November 11, 1905.

On rehearing. Modification denied.

For former reports, see 88 S. W. 566, 1011.

W. J. Driver and E. F. Brown, for appellant. J. T. Costen and W. J. Lamb, for appellee.

McCULLOCH, J.

This case was decided by the court, and an opinion by the Chief Justice delivered on May 27, 1905, reversing and remanding it with directions to the chancery court to enter a decree in favor of appellants for the lands in controversy. One of the controlling points in that decision was the admissibility of a transcript of the record of the commissioner of state lands, as primary evidence of the issuance of a patent, and the views then expressed holding the same to be admissible resulted in a decision that appellants had sufficiently proved their title. We declined at that time to pass upon the validity of appellants' tax title and decree of confirmation for the reason, as expressed by the Chief Justice in the opinion, that the view taken of the case by the court rendered a discussion of these issues unnecessary. Subsequently the ruling of the court was changed as to the admissibility of the transcript as primary evidence of the issuance of the patent, and the mandate was recalled and amended reversing the cause for further proceedings so that appellants could have an opportunity either to take a nonsuit or complete the proof of issuance of the patent. In thus changing the ruling upon the admissibility of this evidence, we failed to take account of the change it worked in the materiality of the question of the validity of appellants' confirmed tax title. Counsel for both sides now unite in a motion that we consider and decide that question, and if it be held that appellants' tax title or the confirmation thereof was valid, it will result in a direction to the lower court to enter a decree in their favor for the lands in controversy. In addition to the original title which is set forth and discussed in the former opinion, appellants claimed title to the lands under a sale made on June 12, 1884, by the collector, for taxes of 1882 and 1883, and also alleged that said sale had been duly confirmed by decree of the chancery court of Mississippi county. It is not claimed that the tax sale conferred a valid title, but appellants introduced a certified copy of the decree of confirmation, reciting all the facts essential to a valid decree. The defendant made his answer a cross-complaint attacking the validity of the confirmation, on the alleged ground that it was procured by appellants by fraud and deception practiced upon the court rendering it. In support of this allegation the defendant testified that he had paid the taxes on said lands for three years, and longer, immediately prior to the rendition of the confirmation decree, and he filed with his deposition the tax receipts for those years.

The confirmation decree which was rendered at the January term, 1898, recited that the petitioner therein presented to the court his tax receipts showing payment of taxes for three years next preceding. Upon this testimony the chancellor found that said decree purporting to confirm the title of plaintiff's ancestor to said lands was procured by "fraud and deception, practiced upon the court by the petitioner therein, inasmuch as petitioner had paid no taxes on the land for three years immediately preceding the application for confirmation thereof," and canceled said confirmation decree. Does the evidence in this record warrant that conclusion of the chancellor? It is settled that a judgment or decree of cou...