McLain v. Duncan

• Decision Date: 03 December 1892
• Citation: 20 S.W. 597,57 Ark. 49
• Parties: MCLAIN v. DUNCAN
• Court: Arkansas Supreme Court

20 S.W. 597

57 Ark. 49

MCLAIN v. DUNCAN

Supreme Court of Arkansas

December 3, 1892

Appeal from Pulaski Chancery Court, DAVID W. CARROLL, Chancellor.

Originally this suit was brought in August, 1887, by the State against a tract of land situated in St. Francis county, under an act approved March 26, 1885, and the act of March 30, 1887 supplemental thereto. The land belonged to the class known as "internal improvement land," and the bill recited that the land had been sold by the State to A. J. Parker in 1858; that the purchase money had never been paid, and that the note given therefor had been lost. The complaint prayed that the State's lien be foreclosed, and the land sold to satisfy that lien. An order was entered in the cause, stating the general objects of the bill and warning all claimants of the land to appear and defend against the complaint. An affidavit appears in the transcript, showing that a copy of this order was published for the required length of time in a paper printed in St. Francis county. No affidavit appears showing its publication in a newspaper printed in Little Rock. At the October term, 1887, a decree was entered in the cause, which recited that publication, as required by the statute, had been made of the warning order; that no one appeared to defend or intervene against the claim of title by plaintiff, and that it further appeared that there was due and owing to the State of Arkansas the sum named in the complaint. It was therefore decreed that the State's lien be foreclosed; and for this purpose a commissioner was appointed to sell the land. At the following April term of the court the commissioner reported that he had sold the land, and that Elijah Duncan had bought it. Thereupon the court entered an order confirming the report. On the same day the commissioner produced to the court a deed to Duncan which, upon examination, was approved by the court. At a subsequent day of the same term, Hannibal McLain filed a petition to set aside the decree. He alleged that he was owner of the land; that he had no knowledge of the pendency of the suit until his land had been sold; and that the decree was obtained without any evidence that the purchase money was unpaid. He asked that he be allowed to defend against the original action, and tendered with his petition an answer which averred that the purchase money for the land had been paid to the State, and alleged that, if it were not so, the State's claim was stale.

Thereupon the court entered an order reciting the filing of the petition, and that there was reasonable ground to believe that the purchase money had been paid; and directing that the sale should be set aside until further order of the court. The court thereupon made E. Duncan party plaintiff to the action. Without a formal order to that effect the cause seems thereafter to have progressed as if Duncan were plaintiff and McLain defendant.

Evidence was introduced by both parties from which the court found that the purchase money originally due for the land from A. J. Parker to the State had never been paid; that McLain's title was derived through a tax sale of the land made at a time when the land was not liable to sale for taxes, and that he was not such a party in interest in the land as to allow him to set up any irregularities in the sale to Duncan. The sale to Duncan was therefore confirmed. McLain has prosecuted an appeal.

Affirmed.

J. M. Moore and Sanders & Watkins for appellant.

1. The act of March 26th, 1885, and the supplemental act of March 30th, 1887, are acts confirming special jurisdiction, and must be literally complied with and strictly construed. In view of these acts, unless there is a note or some record evidence of indebtedness, the Attorney General had no authority to begin the suit. There was no effort to supply proof of the loss of the note. 51 Ark. 39.

2. All jurisdictional facts should appear of record affirmatively. Freeman on Judgm. Secs. 123, 125. It is not shown that the notice was published in Pulaski county.

3. No proof was taken to show the amount due on the note, or that it was lost. Sec. 5189, Mansf. Dig.; act March 30th, 1887; Acts 1889, p. 120.

W. G. Weatherford for appellee.

1. The decree was rendered at the preceding term of the court, and had passed beyond the control of the court. Mansf. Dig. sec. 3909; 33 Ark. 454; 52 id. 316; 41 Ark. 104.

2. It had not been adjudged that there was a valid defense to the action. Mansf. Dig. secs. 3912-13.

3. This was not an action in personam, but in rem, and the decree was final. 16 Ark. 671; 13 id. 291; 53 id. 421. The proceeding is analogous to that for confirmation of tax titles. Mansf. Dig. sec. 576; 42 Ark. 344; 52 id. 400.

4. The judgment is not open to attack--its recitals as to notice, etc., are conclusive. 47 Ark. 419; 44 id. 269; 49 id. 413; 50 id. 340; 42 id. 314; 39 id. 339; 53 id. 478. The order rescinding the confirmation was therefore erroneous, if not void.

OPINION

MANSFIELD, J.

The jurisdiction of the court to render the judgment under which the land was sold is denied on two grounds:

1. It is contended that the proceeding against the land was without legal authority, because, as shown by the complaint filed by the Attorney General, the note given for the purchase money was not in his possession when the action was brought; and it is argued that the possession of the note and its exhibition with the State's pleading were essential to the exercise of the power conferred by the act of 1887 under which the proceeding was had. In support of this position, a section of the act is cited which provides that the officer having the custody of any notes or other evidence of indebtedness for internal improvement lands shall deliver them to the Attorney General, who is required to institute actions to enforce the State's lien.

The complaint of the State excuses the failure to file the note by alleging its loss. As the loss of the note could not extinguish the debt it represented, it would be a most unreasonable construction to attribute to the statute an intention to release or waive the State's lien as vendor of the lands in all cases where the notes for the purchase money had been lost or destroyed. It was evidently the purpose of the act to effect a collection of all debts due for lands of the class to which the tract here involved belongs. If the note of a vendee was lost, it could not of course be delivered to the Attorney General or produced in court. But in such case the statute imposes upon the State only the burden which, under similar circumstances, other vendors must take upon themselves of proving the alleged loss. The clause of the act in which record evidence of indebtedness is spoken of seems to apply to debts evidenced otherwise than by notes. However that may be, if there was record evidence competent to prove the loss of the note in this case, it was not necessary, as insisted by appellant, to file it with the complaint.

2. The second point made by the appellant on the question of jurisdiction is that the decree is invalid because it fails to show that the notice required by the act of 1887 was published in the manner the statute prescribes--that is, by four successive weekly insertions in a newspaper printed in Little Rock and also in a newspaper printed in St. Francis county, where the lands are situated. It is certainly true that the court could acquire no jurisdiction to adjudge a sale of the land without a proper publication of the notice. McCarter v. Neil, 50 Ark. 188, 6 S.W. 731; Gregory v. Bartlett, 55 Ark. 30, 17 S.W. 344. But the law did not require the evidence of publication to be made a part of the record either by entering it there or by filing it. This being so, the recitals of the decree as to the notice are conclusive; and these declare that it was given in the manner required by the statute. We find in the transcript an affidavit proving the publication of the notice in the county of St. Francis; and as no other affidavit is found, this, it is said, is sufficient to show that no publication was made in Little Rock. Neither the decree nor any order of the court identifies the affidavit referred to as part of the proof of publication on which the court proceeded. But treating it as the evidence adduced to show a publication in St. Francis county, there is nothing to indicate that proper evidence was not also produced to show that the necessary publication was made in the city of Little Rock. The mere absence of an affidavit as to the latter publication cannot be allowed to overcome the presumption, arising from the recitals of the decree, that the court's finding as to the notice was made upon sufficient and competent evidence. Boyd v. Roane, 49 Ark. 397, 5 S.W. 704.

3. But it is said that no proof was taken as to the amount of purchase money due on the land; and that in this respect the judgment was not only prohibited by the general statute regulating proceedings against defendants constructively summoned, but was contrary as well to the special act under which the suit was brought. This position, however, is also met by a recital of the original decree, which states a finding of the amount due to the State in language that at least raises a presumption that proof of some kind was adduced. Boyd v. Roane, 49 Ark. 397, 412, 413. And this presumption cannot be rebutted by the recital found in the proceedings of a subsequent term. But if it be conceded that the decree was rendered without proof as to the amount of the debt, this was only an error in the exercise of jurisdiction; and however gross and injurious to the plaintiff it may be regarded, it did not affect the validity of the decree, and the court was without power to correct it by vacating...