Kelley v. Laconia Levee Dist.

• Decision Date: 11 February 1905
• Citation: 85 S.W. 249
• Parties: KELLEY v. LACONIA LEVEE DIST.
• Court: Arkansas Supreme Court

85 S.W. 249

KELLEY v. LACONIA LEVEE DIST.

Supreme Court of Arkansas.

February 11, 1905.

Appeal from Phillips Chancery Court; Edward D. Robertson, Chancellor.

Suit by Harry E. Kelley against the Laconia Levee District. From the decree rendered, plaintiff appeals. Modified.

Joseph M. Hill and James Brizzolara, for appellant. F. M. Rogers, for appellee. Rose, Hemingway & Rose, amici curiæ, also for appellee.

BATTLE, J.

Harry E. Kelley instituted this suit in the Phillips chancery court to quiet title to certain lands. He alleged that he was the owner of them, and that they were wild and unoccupied. The following are the lands:

"T. 5 S., R. 1 E. South half of section twelve; all section twenty-six; east half of east half of section twenty-seven; all section thirty-five.

"T. 5 S., R. 2 E. The west fractional half of southeast quarter of section twelve; west half of northeast of section thirteen; west half of southwest quarter of section eighteen; west half of northwest quarter of section nineteen; southeast quarter of section nineteen; north half of section thirty.

"T. 5 S., R. 3 E. Southeast quarter of section five.

"T. 6 S., R. 1 E. West half of section two; north half of north half of section three; south half of section three; all section four.

"T. 6 S., R. 1 E. North half of section ten; southeast quarter of section twelve; south half of section fourteen.

"T. 6 S., R. 1 E. Southwest quarter of northwest of section five."

The defendant, the Laconia Levee District, answered, and denied that plaintiff was the owner of the lands, and claimed title thereto under a deed executed to it by the Commissioner of State Lands of this state, pursuant to an act entitled "An act to donate to the Laconia Levee Board, the Red Fork Levee Board, the Desha Levee Board, the Chicot Levee Board, and the Linwood and Auburn Levee Boards all the lands in this state within the limits of said levee districts," approved April 14, 1893, which donated to said districts all the lands of the state lying therein which are subject to taxation under the law for levee purposes, "except the 16th section school lands, and all the right or interest that the state has or may have within the next three years by reason of forfeiture for nonpayment of taxes, to any lands within the levee districts."

A decree was rendered in the suit, by the terms of which plaintiff was permitted to redeem the following tracts: Southwest quarter of the northwest quarter of section 5, the southeast quarter of section 12, and the south half of section 14, in township 6 south, and in range 1 east; and his complaint was dismissed for want of equity as to all the other tracts. Plaintiff paid the amount necessary to redeem, in open court, and appealed from the decree as to the residue.

Appellee insists that the appeal should be dismissed because appellant accepted the benefits of the decree. But he was not estopped from appealing by the redemption. There is nothing inconsistent in the two acts. The right to the land redeemed and the right to the other tracts were not dependent on each other, and the assertion of one did not imply the waiver of the other. Stanley v. Deihough, 50 Ark. 201, 6 S. W. 896.

The lands in controversy were wild and unoccupied. The possession of them followed the title. It was necessary, therefore, for appellant to prove that he had title to them. He failed to show that he had title to the following lands: South half of section 12 in township 5 south, range 1 east; section 26 in township 5 south, range 1 east; section 35 in township 5 south, range 1 east; west half of section 2, township 6 south, range 1 east; south half of section 3, in township 6 south, range 1 east; north half of north half of section 3, in township 6 south, range 1 east; section 4, township 6 south, range 1 east; north half of section 10, township 6 south, range 1 east; west half of southeast quarter of section 12, township 5 south, range 2 east; west half of northeast quarter of section 13, township 5 south, range 2 east; southeast quarter of section 19, township 5 south, range 2 east; north half of section 30, township 5 south, range 2 east; southeast quarter of section 5, township 5 south, range 3 east.

The only evidence offered to show that the United States and the state of Arkansas have sold these lands is contained in written statements of the Register of the United States Land Office and the State Land Commissioner in which they severally say that the records in their respective offices show that certain entries were made. They (statements) were not admissible for any purpose. The proper evidence of these facts, in the absence of the original, were copies of the records duly authenticated. Driver v. Evans, 47 Ark. 297, 1 S. W. 518; Hendry v. Willis, 33 Ark. 833.

The west half of southwest quarter of section 18, and the west half of northwest quarter of section 19, in township 5 south, range 2 east, were sold to the state of Arkansas under a decree of a court of competent jurisdiction, rendered in proceedings under an act entitled "An act to enforce the payment of overdue taxes," approved March 12, 1881. Appellant insists that this sale is incomplete, because the commissioner who made it did not certify to the proper county clerk that the land was sold to the state, and that the land is still subject to redemption. To sustain this contention he cites section 12 of the "overdue tax act" of March 12, 1881 (Acts 1881, p. 70), which is as follows: "In case no one shall bid at such sale the commissioner shall strike off said lands to the state, and shall certify that fact to the clerk of the county, who shall file such certificate in his office, and shall send a certified copy thereof to the Commissioner of State Lands, and also to the Auditor." But section 15 (page 70) of the same act provided: "Whenever a report of such commissioner shall be confirmed, all objections to the sale and the proceedings thereunder shall be adjudicated in favor of the validity thereof." The sale of the lands to the state in this case was reported to the court by the commissioner who made it, and was confirmed. The effect of the confirmation was to complete the sale; the court having jurisdiction. The only purpose which the certificate of the commissioner to the county clerk, mentioned in section 12 of the overdue tax act, can serve, was to advise him that the lands so certified belonged to the state, and were not taxable, and to enable him to keep correct taxbooks; and the object of the certificate of the county clerk to the Commissioner of State Lands was to inform him that the lands belonged to the state, and were subject to sale according to law. These certificates were not necessary in this case. The state, by special act, donated the lands to the appellee; and by act approved April 4, 1901, provided that the special act "shall be construed by the courts to be grants in præsenti, and to convey to said levee districts all the right, title, interest, and claim which the state of...