Driver v. Evins

• Decision Date: 25 September 1886
• Citation: 1 S.W. 518,47 Ark. 297
• Parties: DRIVER, ADM., v. EVANS, GUARDIAN
• Court: Arkansas Supreme Court

1 S.W. 518

47 Ark. 297

DRIVER, ADM., v. EVANS, GUARDIAN

Supreme Court of Arkansas

September 25, 1886

APPEAL from Mississippi Circuit Court in Chancery, Hon. W. H. CATE Circuit Judge.

Decree affirmed.

O. P Lyles for Appellant.

If the land was in fact swamp and overflowed, and of this the evidence is conclusive, the title to the land passed to the state by virtue of the Act of 1850. 24 Ark. 444; 33 Id., 833; 36 Id., 334.

The Sawyer receipt and the Smithee certificate, with the evidence of the witnesses, that Stewart entered the land and was in possession at the time of his death, was sufficient even in ejectment. 33 Ark. 335.

U. M. & G. B. Rose and John C. Palmer for Appellees.

The Sawyer receipt and Smithee's certificate are not competent evidence. Mansf. Dig., sec. 2833; Greenl. Ev., vol 1, sec. 498; 1 Whart. Ev., sec. 120; 33 Ark. 833.

The patent of the United States is conclusive, unless overthrown by clear testimony. 93 U.S. 169; 39 Ark. 121; 33 Id., 833.

OPINION

BATTLE, J.

This is a suit in chancery to impeach the validity of a patent issued by the United States to James H. Cannon for certain land in Mississippi county. Plaintiff alleges, substantially in his complaint, that this land was a part of the swamp and overflowed lands granted to this state by an act of congress, approved the 28th day of September, 1850; that his intestate, James Stewart, purchased it from the state on the 16th day of December, 1851; that the state of Arkansas selected and reported it as swamp land on the 20th day of January, 1860; that James H. Cannon entered it, in the land office of the United States, on the 4th day of November, 1872, as a homestead, under the act of congress entitled "An act to secure homesteads to actual settlers on the public domain," approved May 20, 1862; that it was conveyed by the United States to James H. Cannon, by patent, on the first day of June, 1875; and asks that the patent be set aside and defendant be restrained by injunction from holding or claiming the land under the patent, and for general relief.

James H. Cannon was the defendant in this action at its commencement. He died during its pendency, and it was revived against his heirs. They are minors, and defend by a guardian ad litem, who answered the above mentioned complaint for them, it having never been answered by Cannon.

At the hearing of this action, plaintiff introduced as evidence, what purports to be a receipt of William W. Sawyer to James Stewart, for a certificate of purchase of the land in question, signed by John C. O. Smith, land agent for the Helena district, and dated the 22d day of July, 1859, and a certificate of J. N. Smithee, commissioner of state lands for the state of Arkansas, certifying that, according to the records and official documents in his office, it appeared the land in question was selected and reported as swamp and overflowed land by the State of Arkansas, on the 20th day of January, 1860; that James Stewart purchased it from the "old board of swamp land commissioners," on the 16th day of December, 1851, and that afterwards, on the 22d day of July, 1859, a "holding certificate, No. 205," was issued to him for it, and that this certificate is still outstanding. No other evidence was introduced to prove that James Stewart ever acquired from the state any interest in this land. Much evidence was introduced to prove the character of the land as to its being wet and unfit for cultivation.

A decree was rendered by the court below in favor of defendants, dismissing the action, and plaintiff appealed.

The defendants being infants their rights could not be judicially affected, except upon proper issues and proof. Their guardian ad litem...