Rozell v. Chicago Mill & Lumber Co.

• Decision Date: 07 October 1905
• Parties: ROZELL et al. v. CHICAGO MILL & LUMBER CO. et al.
• Court: Arkansas Supreme Court

89 S.W. 469

ROZELL et al. v. CHICAGO MILL & LUMBER CO. et al.

Supreme Court of Arkansas.

October 7, 1905.

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

Action by L. D. Rozell and others against the Chicago Mill & Lumber Company and others. Judgment for defendants. Plaintiffs appeal. Reversed.

This is an action by the children and the grandchildren of Ashley B. Rozell to quiet the title of two sections of wild and unoccupied lands in Mississippi county, Ark., which they claim as the heirs of the said Rozell. The complaint alleged that Rozell purchased this land from Jeptha Fowlkes on the 14th day of February, 1855, and received from him a warranty deed for the same. This deed was recorded in Mississippi county on February 25, 1855, and again recorded on April 4, 1868. Fowlkes purchased the land from the state and paid for same, and on April 22, 1856, obtained certificates of purchase from the state. Fowlkes died in 1863, and in 1870 Sarah Fowlkes, as executrix of his estate, and the devisees under his will, filed an affidavit in the land office of the state, showing the purchase of said land by Fowlkes, and stating that the original certificates of entry had been lost, and that they were entitled to duplicate certificates. Thereupon duplicate certificates were issued to them. Afterwards Sarah Fowlkes and the devisees assigned the certificates to one William H. Chatfield, trustee. On the 1st of October, 1883, Chatfield delivered the duplicate certificates to the state, and received a patent from the state, conveying the land to him as trustee. Afterwards A. H. Chatfield was appointed trustee in lieu of W. H. Chatfield, and he, as such trustee, conveyed the land to George T. Updegraff, and he conveyed it to the Chicago Mill & Lumber Company. Afterwards L. D. Rozell and others brought this action in equity against the Chicago Mill & Lumber Company and others to set aside the patent and deeds under which defendants hold and to have the title vested in them. The complaint set up the facts referred to, and alleged, further, that the obtaining of the duplicate certificates and the assignment thereof by Chatfield was a fraud upon the rights of the plaintiffs, and that the plaintiffs in equity are the owners of the land, and that the deeds upon which defendant claim should be set aside and the title vested in the plaintiffs. The defendant appeared, and filed a demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action against defendant, and that there was no equity in it. The court sustained the demurrer, and dismissed the action for want of equity. Plaintiffs appealed.

S. S. Semmes, for appellants. Lamb & Gautney and N. W. Norton, for appellees.

RIDDICK, J. (after statement of facts).

This is an appeal from a judgment sustaining a demurrer to a complaint and dismissing the action for want of equity. The facts stated in the complaint are set out in the statement of facts, and show, among other things, that in the year 1855 one Jeptha Fowlkes sold certain land to the land to the ancestor of plaintiffs. At that time the land belonged to the state, and Fowlkes had no right to it. But in 1856 he purchased it from the state, and paid for it, and received certificates a entry, which entitled him to a patent when the title of the state to the land was confirmed by the United States. By this purchase from the state Fowlkes acquired an equitable estate in the land, which inured to the benefit of his grantee,...