McMillan v. Morgan

• Decision Date: 19 April 1909
• Citation: 118 S.W. 407
• Parties: McMILLAN et al. v. MORGAN et al.
• Court: Arkansas Supreme Court

118 S.W. 407

McMILLAN et al. v. MORGAN et al.

Supreme Court of Arkansas.

April 19, 1909.

Appeal from Clark Chancery Court; Jas. D. Shaver, Chancellor.

Action to quiet title by W. S. Morgan and W. H. Fagan against Dougald McMillan and William Gerig. From a decree for plaintiffs, defendants appeal. Reversed.

W. S. Morgan and W. H. Fagan instituted this action in the chancery court of Clark county against Dougald McMillan and Wm. Gerig to cancel certain deeds as a cloud upon the title of the plaintiff Morgan in and to the following described lands, situated in Clark county, Ark., to wit: The S. E. ¼ of S. E. ¼ of section 33, and S. W. ¼ of S. W. ¼ of section 34, all in township 5 S., R. 22 W., containing 80 acres more or less. The plaintiff W. H. Fagan entered certain lands of the United States in Clark county, Ark., under the homestead act of 1862, and received a certificate of entry from the register of the United States land office at Camden, Ark. On the 3d day of February, 1883, a patent was issued to him by the United States, and in it the land was described as follows: The S. E. ¼ of the S. E. ¼ of section 33, and the S. ½ of the S. W. ¼, and the S. W. ¼ of the S. E. ¼ of section 34, township 5 S., R. 22 W., containing 160 acres. On the 24th day of December, 1881, Fagan conveyed by warranty deed to the plaintiff Morgan the land in controversy, together with 24 acres of adjoining land for the consideration of $300 evidenced by two promissory notes of $150 each, one payable to W. H. Fagan, and the other to J. E. Fagan, his brother. In the fall of 1883, Fagan says that he sold the east half of his homestead entry to T. T. Fendley. Fendley claims that Fagan sold him the whole of his homestead entry. In the fall of 1884, it was discovered that the lands upon which Fagan had made his improvements and had located his homestead were not the lands described in his patent, but were one mile west of the same. Both the lands described in the patent, and those upon which Fagan located his homestead, were public lands belonging to the United States. The lands described in the patent were back in the woods. They were hilly, had no improvements upon them, and were unfit for cultivation. When it was discovered that the lands upon which Fagan had made his improvements and had located his homestead did not correspond with the lands described in the patent, it was agreed that Morgan's notes should be returned to him, which was done, and that J. E. Fagan should keep $22 which had been paid him on his note, and that the 24 acres should go back to W. H. Fagan. Morgan then left the land on which the homestead had been located and never returned to it, nor did he thereafter pay any taxes or otherwise assert any claim to the lands described in the patent and in the deed from W. H. Fagan to him. On the 31st day of October, 1902, W. H. Fagan and wife and T. T. Fendley and wife executed a quitclaim deed to the lands described in said patent to Dougald McMillan. The consideration paid to Fendley was $20 and to Fagan $5. It appears that the said lands described in the patent were assessed for taxes in 1885, one 80 in the name of W. H. Fagan, and the other in the name of T. T. Fendley. They were sold to the state for the taxes of 1885, and a redemption deed was executed to Dougald McMillan by the commissioner of state lands on the 13th day of November, 1902. Thereafter an undivided interest in the lands was conveyed to his codefendant, Wm. Gerig. Other facts appear in the opinion. The chancellor rendered a decree quieting the title of the plaintiff Morgan in the lands in controversy, and the defendants have appealed.

McMillan & McMillan, for appellants. R. G. McDaniel and J. H. Crawford, for appellees.

HART, J. (after stating the facts as above).

In the cases of Chapman & Dewey L. Co. v. Bigelow, 77 Ark. 347, 92 S. W. 534, and St. Louis Refrigerator & Wooden Gutter Co. v. Thornton, 74 Ark. 383, 86 S. W. 852, it was held that, in actions to quiet title, the plaintiff must succeed, if at all, as in actions of ejectment, upon the strength of his own title, and cannot rely upon the weakness of that of his adversary. Tested by this rule, we are of the opinion that the appellee Morgan was not entitled to prevail in this suit, because he has no title to the lands in controversy. The evidence of both himself and of his grantor, Fagan, shows that he did not purchase them, but purchased a part of the lands upon which Fagan had made improvements and located his homestead....