Burke v. St. Louis, Iron Mountain & Southern Ry. Co

• Decision Date: 04 March 1899
• Citation: 50 S.W. 275,72 Ark. 256
• Parties: BURKE v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RY. CO
• Court: Arkansas Supreme Court

50 S.W. 275

72 Ark. 256

BURKE v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RY. CO

Supreme Court of Arkansas

March 4, 1899

Appeal from Pulaski Chancery Court, THOMAS B. MARTIN, Chancellor.

Affirmed.

P. C Dooley, for appellant.

Equity has jurisdiction to remove a cloud from title where the owner has only an equitable title. 37 Ark. 645; 44 Ark. 437; 29 Ark. 619; Sed. & W. Tr. Tit. § 154; Pom. Eq. § 1399; 63 Ark. 412. Even if plaintiff was in possession, he could go into equity to clear his title. 17 How. 47; 94 U.S 812; 110 U.S. 15; 3 Pet. 447; Sedg. Const. & Stat. Law §§ 488, 548; 44 Ark. 436; 43 Ark. 28; 3 Pom. Eq. § 1399; 23 Wall. 466; 19 How. 271; 130 U.S. 177; 22 Ark. 109; 133 U.S. 471. Equity has jurisdiction Also because appellant has no adequate remedy at law. 36 Ark. 456; 23 Wall 470; 3 Pet. 210.

Dodge & Johnson, for appellee.

One who asks equitable relief in removing a cloud from his title must be in possession, or the lands must be wild and unoccupied. Sand. & H. Dig. § 6121; 56 Ark. 730; 113 U.S. 555; 27 Ark. 233; 27 Ark. 95; Ib. 417; Ib. 680; Ib. 158; 30 Ark. 585; 37 Ark. 645; 39 Ark. 202; 43 Ark. 32. The overdue tax decree of the chancery court was res judicata, and not subject to collateral attack. 13 U.S.C. C. A. 345.

OPINION

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 of April, 1872, purchased from Alexander George, grantee of the state, the lot in controversy, namely: "Twenty feet off the south end of lot 6 in block 1, 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. Stiewel, 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 Junetion 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 properly triable at law; and fifth, because there is no equity in the bill.

There were various other steps taken in the case, but the foregoing statements are all that are necessary to be made in order to understand the point at issue.

This is a case in which the plaintiff has only an equitable title and in order to obtain the legal title, or a legal title, if ever he can he must do so at the conclusion of a controversy with third parties, and then be permitted...