Kirby v. Lewis

• Decision Date: 04 June 1889
• Citation: 39 F. 66
• Parties: KIRBY et al. v. LEWIS et al.
• Court: U.S. District Court — Eastern District of Arkansas

39 F. 66

KIRBY et al. v. LEWIS et al.

United States Circuit Court, E.D. Arkansas.

June 4, 1889

F. W Compton, for plaintiffs.

Dodge &amp Johnson and Scott & Jones, for defendants.

CALDWELL J.

This is an action of ejectment. It was originally brought against numerous defendants to recover 201.52 acres of land comprising a considerable portion of the city of Texarkana and its suburbs. The action has been dismissed as to all the lands except a part of the S. 1/2 of the S.W. fractional 1/4 of section 30, township 15 S., range 28 W., and as to all the defendants except John V. Lewis, William P. Anderson, Frank H. Baldwin, and Walter H. Field, who claim title to the parcel of the S. 1/2 of the S.W. fractional 1/4 described in the amended complaint. The case can best be understood by stating the defendants' title first. The S.W. fractional 1/4 of section 30, township 15 S., range 28 W., containing 81.52 acres, was entered by the Cairo & Fulton Railroad Company at the United States land-office at Washington, Ark December 6, 1856, and was patented to the railroad company July 1, 1859. In the certificate of entry and first patent there was a mistake in the description of the land purchased, in this: it was described as the W. 1/2 of the S.W. fractional 1/4, which only included a small fraction on the state line of less than two acres, whereas the United States sold and the railroad company purchased and paid for, as shown by the plats, the S.W. fractional 1/4, containing 81.52 acres. This error was subsequently corrected, and a patent issued for the S.W. fractional 1/4 May 1, 1884, which, by operation of law, as well as by its terms, relates back to the original entry.

The defendants are the successors and grantees of the Cairo & Fulton Railroad Company, and own all the right and title to the land that passed under the patent of the United States to that company. The practice act of this state requires the plaintiff in an action of ejectment 'to set forth in his complaint all deeds and other written evidences of title on which he relies for the maintenance of his suit,' and to file copies of the same. In their complaint the plaintiffs rely for the maintenance of their suit on a deed for the land in controversy, executed to them by the commissioner of state lands, which reads as follows:

'QUITCLAIM DEED TO UNAPPROVED SWAMP LANDS.-- ACT MARCH 18TH, 1879.

'The State of Arkansas, to All to Whom These Presents shall Come, Greeting: Know ye, that Joseph F. and John C. Kirby have this day purchased from the state of Arkansas the north half of the south-east quarter, and the south-west quarter of the south-east quarter, and the south-west fractional quarter of section thirty, (30,) in township fifteen (15) south of the base line in range twenty-eight (28) west of the fifth principal meridian, containing two hundred and one and 52-100 acres, (201 52-100;) the same being a portion of the swamp and overflowed lands selected by the state of Arkansas as inuring to the said state under the provisions of an act of the congress of the United States of America, entitled 'An act to enable the state of Arkansas and other states to reclaim the 'swamp lands' within their limits,' approved 28th of September, 1850, and which still remains unapproved and unpatented to the state of Arkansas by the general government. Now, therefore, I, W. P. Campbell, commissioner of state lands in and for the state of Arkansas, in pursuance of the provisions of an act of the general assembly entitled 'An act to authorize the sale of swamp lands in certain cases,' approved 18th March,1879, and for the consideration of two hundred and one dollars and fifty-two cents ($201.52,) this day paid to the treasurer of the state of Arkansas, being the amount in full for the purchase money for said land, the receipt for the same being now on file in my office, do hereby, for and in behalf of the state of Arkansas, grant, bargain, sell, and convey to the said Joseph F. and John C. Kirby, and to their heirs and assigns forever, all the right, title, interest, and claim the state of Arkansas has in and to the above-described land, together with all the appurtenances and hereditaments thereunto belonging, to have and to hold the same as now held by the said state, unto the said Joseph F. and John C. Kirby, and to their heirs and assigns forever; provided, however, that if the land above described and conveyed is of a character not comprehended in the act of congress granting the swamp and overflowed lands to the state of Arkansas, then and in that case the said Joseph F. and John C. Kirby shall have no claim or demand on the state of Arkansas for recoupment or otherwise.

'In testimony whereof, I, W. P. Campbell, commissioner of state lands for the state of Arkansas, have hereunto set my hand, and caused the seal of this office to be affixed at the city of Little Rock, on this 25th day of September, 1883. (Seal.) W. P. CAMPBELL, Commissioner of State Lands.'

It will be observed that the deed from the commissioner of state lands to the plaintiffs recites that the lands described therein are 'a portion of the swamp and overflowed lands selected by the state' under the swamp land grant 'which still remains unapproved and unpatented to the state,' and that the deed is made 'in pursuance of the provisions' of the act approved March 18, 1879. That act reads as follows: 'Section 1. That all lands which have been and which may hereafter be selected by any authorized agent of the state to make selections of swamp and overflowed lands be, and the same shall hereafter be, subject to sale on the following conditions, whether the same has ever been approved and patented to the state by the general government or not:

'Sec. 2. That pre-emptors and settlers on the selected and unconfirmed swamp lands of the state, and their legal representatives or assigns, shall have a preference right to purchase such lands by making satisfactory proof to the commissioner of state lands of their rights as such pre-emptors and settlers.

'Sec. 3. That any person not a pre-emptor or settler, who shall apply to purchase any of such lands, shall make and file with the commissioner of state lands an affidavit stating that the land applied for has no improvement on it, and that no person is residing upon it, or claims it by virtue of any pre-emption certificate issued by authority of law, to the best of his or her knowledge and belief, which affidavit shall be attested by the county or circuit clerk, or by some notary public of the state, or by the commissioner of state lands, and shall be filed in the state land-office.

'Sec. 4. That on proper application being filed with the commissioner of state lands for the purchase of any of the selected and unconfirmed swamp lands of the state, and full payment therefor being made to him, he shall execute to the purchaser or purchasers thereof a quitclaim deed therefor conveying all the right, title, and interest of the state in and to the land so sold.'

It will be observed that the power of the commissioner of state lands to sell under this act is limited to 'lands which have been and which may hereafter be selected by any authorized agent of the state to make selections of swamp and overflowed lands;' and it is recited in the deed that the land in controversy had been so selected. On the 14th of December, 1875, the general assembly of the state passed an act, the preamble of which reads as follows:

'Whereas, under the provisions of the act of congress approved September 28, 1850, entitled 'An act to enable the state of Arkansas and other states to reclaim the swamp lands within their limits,' a large amount of lands were selected which were afterwards disposed of by the United States; and whereas, upon proper proof that any lands so selected came within the provisions of the grant aforesaid, the United States government will refund to the state, in case of cash entry, the amount of purchase money, and an equivalent in lands for the tracts located with military, county warrants, or script; therefore,' etc.

This act provides for the appointment of 'an agent whose duty it shall be to procure the necessary proof in each and every case of the kind above recited, and make a final settlement with the United States government on behalf of the state. ' The seventh section of this act confirms the titles of the purchasers to all swamp lands purchased from the United States after the passage of the swamp-land grant, in these words:

'Sec. 7. That all titles to lands embraced in this act are hereby ratified and confirmed, and made as valid as if deeded or patented by the state of Arkansas.'

If the land in controversy was swamp land, the title to which vested in the state under the swamp-land grant, the state, by this act, relinquished and transferred her title thereto to the railroad company, who purchased it from the United States. The plaintiffs, perceiving this to be the effect of the act, if the land was 'selected' swamp land, now say that the recitals in their deed that the land is 'a portion of the swamp and overflowed land selected by the state,' and that the deed is made 'in pursuance of the provisions of' the act approved March 18, 1879, are mistakes, and ask the court to reject them in the consideration of the case. But the plaintiffs cannot reject the recitals in their deed. In their complaint they rest their right to recover on this deed, which is made a part of the complaint. There is no suggestion in the complaint that the recitals in the deed are false, or that the plaintiffs claim title to the land on any other or different grounds than those recited in their deed. The recitals conform to the plaintiffs' application to purchase. The recitals...