Boynton v. Ashabranner

• Decision Date: 27 May 1905
• Citation: 88 S.W. 566,75 Ark. 415
• Parties: BOYNTON v. ASHABRANNER
• Court: Arkansas Supreme Court

88 S.W. 566

75 Ark. 415

BOYNTON v. ASHABRANNER

Supreme Court of Arkansas

May 27, 1905

Appeal from Mississippi Chancery Court, Chickasawba District EDWARD D. ROBERTSON, Chancellor.

Reversed.

Judgment reversed and cause remanded.

Driver & Harrison, for appellants.

The decree of confirmation cannot be attacked collaterally. 49 Ark. 400; 50 Ark. 188; 55 Ark. 37, 398; 22 Ark. 118; 20 Or 96; 6 Ia. 180; Kirby's Dig. § 673; 1 Freem. Judg § 673; 57 Ark. 628; 62 Ark. 421; 66 Ark. 1; 68 Ark. 211. Appellants' title under the tax deed is valid. 32 Ark 496; 58 Ark. 213; 42 Ark. 100; 56 Ark. 93; 69 Ark. 576. The owner of a legal title is presumed to be in possession. 38 Ark. 277; 45 Ark. 81; 65 Ark. 422; 67 Ark. 411. Appellee was never in possession of the land. 57 Ark. 97; 68 Ark. 551; 49 Ark. 266; 50 Ark. 141; 54 Ark. 537. The purported decree in the case of Fowlkes et al. v. Citizens Bank is void. 71 Ark. 226; 4 Enc. Pl. & Pr. 345; Black, Judg. § 174; 40 Cal. 183; 4 Col. 109; 58 Ga. 114; 11 W.Va. 673; 37 Tex. Cr. Rep. 539; 57 Ark. 49; 64 Minn. 531; 22 Utah 65; 29 W.Va. 385. This defense can be raised at any time. 48 Ark. 151; 14 Ark. 286; 13 Ark. 242.

W. J. Lamb and J. T. Coston, for appellee.

Appellants' tax title was invalid. 34 F. 705; 68 Ark. 248; 61 Ark. 36; 65 Ark. 596; Kirby's Dig. § 7086; 86 S.W. 126. A direct attack is made upon the decree of confirmation (56 Ark. 79), which was void because appellant failed to pay taxes. Kirby's Dig. § 665; 22 Ill. 619; 110 Ill. 418; 40 N.E. 449, 453. The question of jurisdiction can be raised at any time. 139 U.S. 147; Van Fleet, Col. Att. 4; Kirby's Dig. § 4431; 112 Ind. 221; 16 La. 82. The court had no jurisdiction, and the decree of confirmation is void. 42 Ark. 344; 68 Ark. 214; 61 Ark. 51; 97 U.S. 444; 91 U.S. 508; 192 U.S. 128; 60 F. 224; 28 S.W. 964; Mansf. Dig. § 5764; 24 Ark. 521; 34 How. Pr. 197. Appellee was entitled to personal service. 34 Md. 381; 33 Miss. 664; 20 Cal. 94; 79 Cal. 463; 44 Cent. Dig. 2731. The act of 1862 was never repealed. Black, Inter. Laws, 112; 40 Ark. 452; 45 Ark. 391; 60 Ark. 129; 69 Ark. 517; 31 Ark. 344; 24 Ark. 521; 62 Ark. 194. The decree of Fowlkes et al. v. Citizens' Bank is valid. 119 Ill. 9; 85 Ia. 328; 130 Ind. 328; 118 Ind. 320; 35 Ill.App. 283; Van Fleet, Coll. Att. 927. Boynton was not an innocent purchaser. Kirby's Dig. § 4478; 120 F. 823; 142 U.S. 437. Evidence of Cross' patent is incomplete. 47 Ark. 300; 57 Ark. 158. No patent was issued to Cross. 21 Ark. 17; 27 Ark. 95; 24 Ark. 389; 40 Ark. 274; 120 U.S. 554.

OPINION

HILL, C. J.

The land in controversy is the east half of the southeast quarter of section 26 in township 15 north and range 8 east, being situated in Mississippi County. The appellants deraign title as follows: the Swamp Land Grant to the State of Arkansas; the State deeded it to D. C. Cross December 4, 1866; the Citizens' Bank of Louisiana obtained a judgment in the Federal Court against D. C. Cross, and this land was sold under execution, and purchased by the said bank, to whom it was conveyed by the marshal; the said bank conveyed to W. L. Culbertson; Culbertson and wife conveyed to C. O. Boynton; the widow and heirs at law of D. C. Cross conveyed to C. O. Boynton; the appellants are heirs at law of C. O. Boynton. The appellants also claim under a tax deed and a decree confirming the tax title. The tax title and decree are both attacked, but the view the court takes of the case renders a discussion of those issues unnecessary.

The appellee claims to be the owner under a deed from the State executed December 7, 1889; the State's title being based on forfeitures for taxes in the years 1869 and 1870. The forfeitures for these years are showns to be void, and this title is not insisted upon by appellee, other than as giving color of title. The appellee attacks the State's deed to Cross and the title of the Citizens' Bank and of Culbertson derived therefrom, and sets up title in himself by adverse possession and by seven years payments of taxes under color of title in virtue of the act of 1899.

These issues will be presented and decided in the order mentioned.

1. The evidence of the conveyance by the State to Cross is a transcript of the record of the Commissioner of State Lands showing that the State deeded this land to D. C. Cross on December 4, 1866, and it is certified by the Commissioner that the transcript is a true and correct copy of the record of that office, in so far as it relates to this land. This certificate falls within section 3064 of Kirby's Digest, making such transcripts from the record evidence of the facts therein stated. It is objected that the original patent was not produced or accounted for, and that this evidence is secondary. The court said, through Chief Justice Cockrill, referring to this statute: "The statute makes a certified copy of such records of equal dignity as evidence as the originals." Dawson v. Parham, 55 Ark. 286, 18 S.W. 48.

The State issued a subsequent deed to this land to Jeptha Fowlkes, on the 3d of April, 1867. This deed recites that the land agent granted a patent certificate to said Fowlkes on the 7th of June, 1855, and, it appearing that the purchase money was fully paid, the conveyance was made by the Auditor. The appellee does not deraign title under this deed, but introduces it seeking to avoid the Cross deed of prior date. It is well settled that a State deed may be attacked in equity for fraud or mistake or other equitable grounds showing that the State had only a naked legal title, and not the real title, when it conveyed. Coleman v. Hill, 44 Ark. 452; Chowning v. Stanfield, 49 Ark. 87, 4 S.W. 276.

The Court of Appeals of this Federal circuit in Boynton v. Haggart, 120 F. 819, took a different view of the effect of the issuance of the State's Deed, holding it was impervious to collateral attack. But, following the decisions of this Court on this subject, the result is the same, because the appellee has not proved that Fowlkes' purchase was prior to Cross', nor negatived a valid transfer of the original certificate to Cross. The following excerpt from Dawson v. Parham, 55 Ark. 286, 18 S.W. 48, reading Brinkley into Cross and appellant into Fowlkes, fits this case exactly:

"The patent to Brinkley was issued in, pursuance of the authority granted by the swamp land acts. It is recited that the land agent had previously issued his patent certificate to Brinkley by virtue of the act of January 20, 1885, as the original purchaser of said land. These recitals show the authority upon which the government assumed to act in issuing the patent. There is a presumption, therefore, that they are true. We must take it then that Brinkley was the original purchaser, until the contrary is proved. The reason for that presumption is made more apparent by a consideration of the act of January 20, 1855, under which the certificate was issued. One of the objects of the act was to afford the swamp land agents the opportunity to adjust conflicting entries. Hempstead v. Underhill, 20 Ark. 337. To that end provision was made to the effect that a certificate previously issued by the swamp land commissioners should be presented for examination to the officers then known as the swamp land agents of the proper district. If the holder was ascertained to be the original purchaser, he received from the agent what the act terms a 'patent certificate.' The deed affords evidence, as we have seen, of the fact that Brinkley was the holder of such a certificate, issued in pursuance of this act; and, as the officer who issued that certificate is presumed to have acted in conformity to law in issuing it (Rice v. Harrell, 24 Ark. 402), we must presume that Brinkley surrendered a valid certificate of purchase upon the issue of the patent certificate. In order for the appellants to show a prior right, and a consequent superior equity, it was incumbent upon them to establish that their certificate of purchase was issued prior to that which Brinkley surrendered. Holland v. Moon, 39 Ark. 120."

In that case the court further said that it was not necessary to rely upon these presumptions, but in this case the presumption necessarily arises from evidence of the prior deed from the State that upon its issuance Cross surrendered a certificate prior to that of Fowlkes, or a valid assignment of the same certificate, and shifts the burden upon those attacking it to overcome these presumptions in its favor. It is of no consequence that the State deed is not present, because it is presumed to contain all recitals required by law.

2. The title of the Citizens' Bank, through which appellants deraign title, is attacked.

It was shown that a consent decree was spread upon the records of the Mississippi Chancery Court in a case entitled Jeptha Fowlkes and Sarah W. Fowlkes, executrix of the last will and testament of Jeptha Fowlkes, deceased, and others, against the Citizens' Bank of New Orleans in Louisiana. It recites the appearance of the respective parties, and consent to the decree and findings from the evidence by the court the purport of which was to divest the title of the bank acquired under its judgment against Cross and purchase at execution sale thereunder, and invest it in the plaintiffs, the Fowlkes. The said decree "appears upon the record of proceedings of the chancery court to have been rendered after the adjournment of the May term and the beginning of the fall term thereof, and the record fails to show that an adjourned term of the court was held at which the same might have been rendered. It appears upon the record between the adjourning order of the May term and the opening order of the fall term of said chancery court." This decree was an absolute nullity, without even as much basis as the...