Chism v. Price

• Decision Date: 28 February 1891
• Citation: 15 S.W. 883
• Parties: CHISM v. PRICE <I>et al.</I><SMALL><SUP>1</SUP></SMALL>
• Court: Arkansas Supreme Court

15 S.W. 883

CHISM v. PRICE et al.¹

Supreme Court of Arkansas.

February 28, 1891.

Appeal from circuit court, Conway county; G. S. CUNNINGHAM, Judge.

E. B. Henry and S. W. Williams, for appellant. Ratcliffe & Fletcher and G. W. Shinn, for appellee.

HEMINGWAY, J

The plaintiff claims the land in suit as a part of the swamp-land grant made by congress, September 28, 1850, and the defendant as a part of the railroad land grant made by the government, February 9, 1853. The rule is well established that the act of 1850 made a present grant of all lands coming within the description of the act, and when they are properly designated the conveyance relates back to the date of the grant. Hendry v. Willis, 33 Ark. 833. By the terms of that act it was made the duty of the secretary of the interior, as soon as practicable after its passage, to make out an accurate list and plat of the lands granted, and transmit the same to the governor, and, at the request of the governor, to issue a patent to the state. The law indicated no method by which the secretary should ascertain and designate the lands, but a practice grew up, whereby the agents of the states selected the lands and transmitted lists thereof to him, through the commissioner of the land-office, whereupon he certified back to the governor a list and plat of such as he approved as coming within the description of the grant. The secretary was designated by the act to determine what lands came within it, and his conclusion was manifested, as above indicated. In the operation of the system great delay arose in procuring his approval of the lists forwarded, and on the 3d of March, 1857, congress passed an act providing that all selections theretofore made and reported to the commissioner of the land-office, in so far as the same were vacant and unappropriated, and not interfered with by any actual settlement under any existing law of the United States, should be confirmed. By that act all lands previously so selected, and not appropriated or settled on as therein indicated, were brought within the provisions of the original act without ascertainment by the secretary. The state's selection of the land in suit had been made and reported to the commissioner, and this act impressed upon it the character of swamp lands, and brought it within the operation of the granting act, unless it came within the saving clause, as land previously appropriated or settled upon under some existing law. The railroad filed its selection of this land after the passage of the act of 1857, but it does not appear that it had appropriated it or settled on it before that date. The secretary of the interior approved its selection but such approval was made expressly subject to conflicting claims. He never adjudged that it was appropriated or settled by the railroad prior to March 3, 1857, or that the railroad, prior to that time, or any other time, was entitled to appropriate or settle upon it against the swampland grant. There is no adjudication by the secretary of the interior and no proof upon which we can hold that the land comes within the saving clause of the act of 1857. It may therefore be conceded that either grant would have conveyed the land, if the other had been out of the way, in which case the elder would be held to prevail. Martin v. Marks, 97 U. S. 345.

The defendant contends that, although the state took this land as a part of the swamp land, the plaintiff cannot recover. As a reason therefor, he urges that the state was the owner until 1881, and that by the act of March 13, 1879, it was provided that where any lands, claimed by the state and the railroad company under the acts first referred to, had been sold by the state or the railroad prior to said date, the title of the purchaser should be confirmed and quieted. The act appealed to was entitled "An act to authorize the commissioner of state lands to settle by compromise the conflict of title between the state and the railroad companies to selected and unapproved swamp and overflowed lands." It provided that in all cases where lands had been selected by the state and a railroad company, and, because of such conflict, had not been approved or patented to either the state or the company, the commissioner of state lands should be authorized and empowered to compromise such conflict with the company, and agree which of the lands should go to the state and which to the company; and, if any legal point should arise upon which the commissioner and the company could not agree, the commissioner should be authorized with the company to make an agreed state of facts, and submit the same to the chancery court to decide the legal points arising thereon, with the proviso that, in all cases where such lands had been sold by the state or the company, the title of the purchaser should not be disturbed, but should be confirmed and quieted. The plaintiff contends that the lands in controversy do not come within the provisions of this act, because this land had been approved to the state by the act of congress of March 3, 1857, and the state act applied only to lands selected, but not approved or patented. The defendant replies that the act of March 3d did not approve lands selected, but, in so far as they had not been appropriated or settled under existing laws, confirmed them, and expressly provided that they should be approved and patented according to the original act as soon as it might be practicable; and that the secretary of the interior had never approved or patented them to the state as was thus provided, and had failed to do so because of the railroad's claim that it had previously appropriated them. Why the secretary failed to certify the list and plat of this land to the governor, and to make a patent for it, is not disclosed by the record; but the fact of such failure appears. It is not necessary to determine the matter of difference stated, for, in our opinion, the act relied on is inapplicable for another reason. As its title and context clearly discloses, the act treated alone of the authorized proceeding between the commissioner and the railroads to compromise conflicting claims. In the first place, it authorizes the commissioner to make a compromise on behalf of the state. It then provides that he may submit any difference of law between himself and the railroad for the decision of the chancery court, clearly intending any difference that might arise in the course of a compromise, and that the court shall decide the legal questions submitted. Then follows the proviso that the titles of all persons who had purchased either from the state or the railroad should be quieted. The legislature did not intend by that act to confirm and quiet titles of purchasers from the state to lands belonging to the railroad, for that was beyond its power. It cannot be thought to have intended to relinquish absolutely the state's claim to its lands that had been sold by the railroads, for that would be a bestowal of a bounty out of public lands upon the purchasers of another, with no compensating returns. The proviso was intended to indicate and limit the commissioner's authority in compromising the conflicting claims, and to prescribe a rule of decision to govern the chancery court in determining matters submitted to it. It prescribed terms upon which such claims might be submitted to compromise, and, if the railroads agreed to a submission, they accepted those terms. If, in the course of the compromise, it should be ascertained that the state had sold lands belonging to the railroad, or that the railroad had sold lands belonging to the state, it was fixed by the terms of submission that the title of purchasers from each should be confirmed. The state thus gave up its lands sold by the railroad, in return for a relinquishment by the railroad of its right to its lands sold by the state. It may well have been considered that the losses on each side would be compensated in concessions by the other. But there is no proof that the railroad ever submitted to the conditions of the act, and therefore its purchasers can claim no benefits dependent on such submission.

It is next contended for the defendant that the plaintiff cannot recover because, at the time of the latter's purchase from the state, the former was and the latter was not entitled to purchase the land; that the plaintiff obtained his patent by means of a false affidavit, and thereby deprived the defendant of his right to obtain a patent. This, it is insisted, was a fraud on the defendant, and entitled him to demand a conveyance from the plaintiff. A stranger or occupant without right cannot assail a patent for fraud practiced against the state, but an occupant with a right to purchase may attack a patent issued in fraud of his rights, and upon equitable terms may demand a conveyance from the patentee. Lee v. Johnson, 116 U. S. 48, 6 Sup. Ct. Rep. 249; Paty v. Harrell, 24 Ark. 40; ...