Burke v. St. Louis. I. M. & S. Ry. Co.

• Decision Date: 04 March 1899
• Parties: BURKE v. ST. LOUIS. I. M. & S. RY. CO. et al.
• Court: Arkansas Supreme Court

50 S.W. 275

BURKE v. ST. LOUIS. I. M. & S. RY. CO. et al.

Supreme Court of Arkansas.

March 4, 1899.

Appeal from Pulaski chancery court; Thomas B. Martin, Chancellor.

Bill by John Burke against the St. Louis, Iron Mountain & Southern Railway Company and others. There was a decree for defendants, and plaintiff appeals. Affirmed.

P. C. Dooley, for appellant. Dodge & Johnson, for appellees.

BUNN, C. J.

This is a bill in equity to cancel a deed under which defendants claim title and hold possession, and to quiet plaintiff's title, which is an equitable title only (and he out of possession). Demurrer to the complaint sustained, and plaintiff appeals.

The plaintiff alleges in his bill that his father, James H. Burke, on the 10th April, 1872, purchased from Alexander George, grantee of the state, the lot in controversy, namely, "twenty feet off the south end of lot six, in block one in Pope's addition to the city of Little Rock" for the consideration of $1,300, but for "business conveniences" had the deed made to his father, the grandfather of plaintiff, John Burke; that the understanding was that John Burke, Sr., was to hold merely as a trustee for the benefit of the heirs and assigns of the purchaser, the said James H. Burke, and that plaintiff is his only son and heir, he having died soon after the purchase, and that John Burke, Sr., now also deceased, always recognized his title to be only that of a trustee; and, in support of this, plaintiff files, as an exhibit to his complaint, the answer of said John Burke, Sr., in another suit concerning the same property, in which he disclaims all other ownership, except in trust. The plaintiff further shows, in his complaint, that defendants are in possession, claiming under a quitclaim deed from one E. S. Stiewell, who held under a deed made in the chancery court of Pulaski county, in an overdue tax proceeding, and calls this deed in question for some alleged errors and irregularities in said overdue tax proceedings, and charges fraud upon the defendant Junction Railway Company in making said deed call for false and erroneous description of the property, and makes other collateral attacks upon said deed and the proceedings upon which it is founded. The defendants demurred on five several grounds: First, generally; second, because plaintiff had adequate remedy at law; third, because plaintiff, out of possession, could not maintain an action to remove opposing title; fourth, because the action is one...