McConnell v. Day

• Decision Date: 04 January 1896
• Citation: 33 S.W. 731,61 Ark. 464
• Parties: MCCONNELL v. DAY
• Court: Arkansas Supreme Court

33 S.W. 731

61 Ark. 464

MCCONNELL v. DAY

Supreme Court of Arkansas

January 4, 1896

Appeal from Crittenden Circuit Court in Chancery JAMES E. RIDDICK Judge.

Ejectment by Day & Proudfit against Ella G. McConnell and others. The facts are stated in the opinion of the court.

Judgment affirmed.

W. G Weatherford, for appellants.

1. Mrs McConnell is not barred by the U. S. court judgment. It was void for want of jurisdiction, apparent upon the record. Mansf. Dig. sec. 5201; 49 Ark. 413; 34 Cal. 391; 57 Ark. 49, 628; 56 id. 338. No case can be found where a judgment record, shown by proper evidence to be a complete record, containing no process, no docket entry, and no order nor recital to raise the presumption of appearance has been held a valid judgment. The clerk's certificate is evidence, and the best, that this was the entire record of the case. 55 Ark. 36; 7 id. 369; 7 Cranch, 408; 95 U.S. 418. The presumption as to validity of a judgment of a superior court is always rebuttable by the record itself. 1 Black, Judg. sec. 270. The presumption is overthrown when the record of the entire case discloses no service. 12 Am. & Eng. Enc. Law, p. 273, note 2; 8 Cal. 569.

2. Mrs. McConnell was not a party to that suit, nor does she claim title through B. F. McConnell.

3. The tax sale was void. 33 Ark. 478.

4. There was no authority for the appointment of Metcalfe, the substituted trustee, and the sale by him was void. Hill on Trustees, *p. 177; 1 Perry, Trusts, sec. 289; 2 id. sec. 602 g; 55 Ark. 326.

5. No evidence was introduced to prove that the sale by Metcalfe was made according to the terms of the trust deed. 2 Perry, Trusts, sec. 602 t. The recitals are not sufficient. 4 Wheat. 77; 51 Ark. 452; 134 U.S. 241; I Devlin, Deeds, sec. 425; 2 Perry, Trusts, sec. 782; 62 Ala. 499.

6. Appellees are barred by the statute of limitation of seven years. When this statute is set up, the burden is on plaintiff to show both a cause of action and the suing out of process within the period. 145 Mass. 370; 48 Ark. 282; 43 id. 136; 27 id. 343; 2 Gr. Ev. sec. 341; 16 S.E. 683; 40 N.W. 10; 51 Vt. 106.

W. B. Edrington, for appellees.

1. The burden of proof is upon the party who relies upon the fact of possession. 57 Ark. 97.

2. In the first deed of trust Fitzgerald & Co. had power to appoint a substituted trustee. There was no new instrument, but merely an extension of time of payment stipulated for in the original.

3. Recitals in trust deeds to the purchaser are, at law, generally held to be prima facie evidence of the facts stated, even where the power itself does not provide that such recitals shall have that effect. 43 Iowa 286; 33 Ind. 318; 67 Miss. 169; 109 Ill. 579.

4. It will be presumed, not only against the mortgagor, but against all persons claiming under him, that a sale under a mortgage was advertised as required by the terms of the power, and the burden of proof rests upon the party attacking the sale to rebut this presumption. 26 Am. & Eng. Enc. Law, p. 902; Caine's Cases (N. Y.), 1; 2 Am. Dec. 281.

5. In collateral attacks, it will be presumed that courts of general jurisdiction have acted correctly and with due authority, and their judgments are as valid as though every fact necessary to jurisdiction affirmatively appeared. Where jurisdiction of the subject matter appears, jurisdiction of the person is presumed where the record is silent. 18 Wall. 365; Freeman on Judgments, secs. 124-132; 49 Ark. 413; 53 N.Y. 600; 11 Ark. 519, 572, 731; 13 id. 414, 433, 505; 14 id. 124; 12 id. 86, 272; 19 id. 185; 18 id. 294; 20 id. 78; 21 id. 367; 44 id. 426, 270; 33 id. 828; 37 id. 540; 47 id. 419; 32 id. 691; 18 How. 164; 117 U.S. 269.

OPINION

BOURLAND, Sp. J.

This was an action in ejectment in the Crittenden circuit court, brought by appellees to recover from the appellant a large quantity of land, being portions of sections 14, 22, 23 and 24, in township 5 north, of range 8 east, of which it is alleged that appellant is in the unlawful possession. The pleadings are lengthy, and the whole record suggests the propriety of an attempt at condensation of treatment. It is believed, therefore, that a substantial statement of the facts disclosed by the record will afford a sufficiently favorable view of the issues and points of contention between the parties.

Appellees' deraignment of title appears to have a double aspect. It seems that one John G. Rieves had owned the land in controversy, and that Ella G., the appellant, was then his wife. In the spring of 1875, Rieves died in possession, childless, and widowing Ella G., who, left in possession, inter-married in 1877, with B. F. McConnell, who has since died. From exhibits in evidence, it appears that in 1871 Rieves and his wife, Ella G., conveyed the land in trust to one Jefferson, for Fitzgerald & Company, with power in the trustee to sell in the event of default. The instrument also contains a power in the cestui que trust to substitute in writing a new trustee upon conditions specified. Jefferson, the trustee, in January, 1876, by a written declination, renounced the trusteeship, and on the same day the cestui que trust in like manner substituted and appointed in his stead one Metcalf. The new trustee, Metcalf, in March of the same year, executed and delivered to Fitzgerald & Company, in apparently regular form, a deed containing recitals as to default, advertisement, sale and purchase of the land by Fitzgerald & Company; and the latter, in July, 1882, by deed without warranty, conveyed the land to B. F. McConnell. From a tax deed in evidence, however, it is made to appear that, for the year succeeding the execution of the trust deed by Rieves and wife, namely, for the year 1872, the lands were forfeited for taxes. They, on that account, were sold by the collector, and one Hardin became the purchaser, and received a certificate. It appears that the collector's sale took place on the 11th day of June, 1873. Thereafter, and when more than two years had expired from the date of the tax sale, appellees, Day & Proudfit, became purchasers from Hardin, taking an assignment of his certificate, upon which the county clerk issued to them this tax deed.

In this connection, it is appropriate to advert to another trust deed offered and read in evidence by appellant, apparently without objection, in conjunction with other evidence, for the obvious purpose of destroying the alleged tax deed as a link in the chain of appellees' title. This trust deed was executed in March, 1873, two years after the execution of the Fitzgerald deed. It was executed by Rieves and wife to one Oliver, trustee for Day & Proudfit, appellees in this action; and at the time of their purchase from Hardin, and of the execution of the tax deed to them, Oliver, the trustee, was in possession of the premises, at their instance, appropriating the rents and profits to the trust debt. It is not amiss to observe here that the Oliver deed does not embrace the land lying in section 22; and if the trust was ever finally executed, the fact does not appear in the record. In any event, appellees do not, it seems, rely upon this deed in their deraignment of title.

And again, recurring to McConnell, who, we have seen, purchased under the Rieves-Jefferson deed, it appears that, four years after his purchase, McConnell was in possession of the land, and it is made to appear that, during a portion of that period, at least, he rented from Day & Proudfit. It may be inferred, we think, from the circumstances, that McConnell rented under the belief that the title of Day & Proudfit, under the tax deed, was superior to his own under the Jefferson trust deed; but, after a time, changing his mind, he asserted title to the land, and refused to give up the possession. In any event, it appears from a transcript of the record of the federal circuit court, sitting at Little Rock, that Day & Proudfit sued him in March, 1886, they being citizens of Tennessee, and he a citizen of Crittenden county, Arkansas. This transcript of the record of the federal court is duly certified, under the official seal of the clerk of that court, to be "a true, correct and compared copy of the record remaining in my office, and constitutes a complete transcript of the record in the above entitled cause." There is contained in the transcript a complaint in ejectment by Day & Proudfit against B. F. McConnell, with exhibits, setting up title under the tax deed already mentioned, and alleging that the plaintiffs own the land, and are entitled to the possession, and that McConnell unlawfully withholds the same, with prayer for possession. There is also a copy of the judgment, finding that Day & Proudfit owned the land and were entitled to the possession as against McConnell, and writ of possession was accordingly adjudged, with cost. There is, likewise, transcribed a return, certified to have been made on a writ of possession, showing that the lands were delivered to Day & Proudfit by the marshal of the eastern district of Arkansas, on the 17th day of November, 1886. If McConnell was summoned in the action, however, or if a summons was issued, or if he in any way appeared, the record is silent as to the fact.

To each link in appellee's title, thus offered in evidence appellant filed exceptions before the trial: (1) To the tax deed, because it shows a sale on the 11th day of June, 1873, which, it is alleged, renders the deed void; (2) to the transcript of the federal court, because appellant, not being a party to the suit, is not, it is alleged, bound by the judgment, and because McConnell, it is alleged, was not summoned, and did not in any manner appear in the suit; and (3) to the Metcalf deed, because he was not rightfully appointed, it is alleged, nor did...