State v. Taylor

• Decision Date: 08 July 1918
• Docket Number: 108
• Citation: 205 S.W. 104,135 Ark. 232
• Parties: STATE v. TAYLOR
• Court: Arkansas Supreme Court

205 S.W. 104

135 Ark. 232

STATE v. TAYLOR

No. 108

Supreme Court of Arkansas

July 8, 1918

Appeal from Craighead Circuit Court, Lake City District; W. J Driver, Judge; affirmed.

Decree affirmed.

John D Arbuckle, Attorney General, J. W. House, Jr., and Gordon Frierson, for appellant.

1. Congress by act June 23, 1836, vested the title to the school lands in the State as trustee. It is incumbent therefore for appellees to deraign title from the State. 19 Ark. 308.

2. Appellees do not claim to own the lands by virtue of any patent issued by the State. The notations and excerpts from the register of school lands, sold and unsold, plats, etc show, if anything, payment in Confederate money bought at five cents on the dollar. These records serve no useful purpose and are irrelevant and incompetent.

3. The various acts of the Legislature as to sixteenth section lands are unconstitutional and void. Acts 1905, page 472; Acts 1911, page 5, etc. They are an effort to dispose of the lands without any consideration, which it could not do. Const art. 14, § 2; 95 Ark. 65; 63 Id. 56; 106 Ind. 270; 6 N.E. 623. The sheriff had no power to sell and the purchaser acquired no title. 29 La.Ann. 77; 31 Id. 175; 40 Neb. 298; 58 N.W. 966; 42 N.Y. 404. As to the unconstitutionality of the acts impairing the school fund, see 5 Neb. 203; 64 N.J.Eq. 584; 22 N.E. 255; 51 P. 112; 72 Ky. (9 Bush), 259; 74 Ky. (11 Bush), 74; 94 Ky. 177; 19 S.W. 405; 15 L. R. A. 825; 59 N.W. 907; 24 S.W. 272; 49 Mo. 236; 54 Ark. 468; 34 P. 274; 62 F. 417; 3 N.E. 165; 15 Mo. 412; 18 Col. 195; 29 La.Ann. 77; 40 Neb. 298; 56 Miss. 758; 13 Barb. 400; 73 Md. 521; 126 N.C. 689; 6 Ind. 83; 116 Id. 329; 16 Miss. 773; 31 La. 175; 73 Neb. 104, etc.

4. The acts of the Legislature violate section 10, art. 1, Const. U. S.; 19 Ark. 208; 4 Wall. 143-155; 2 Yerger, 543; 1 Head (Tenn.), 172.

Hawthorne & Hawthorne and Lamb & Frierson, for appellees.

1. Review the legislation of Arkansas regarding school lands. The ancient records introduced were competent and prove a sale by officers authorized to sell and the act of 1911 is not a present grant but simply a curative act constitutional and valid. Act 80 of 1875 is also a curative act. None of the cases cited by appellant concern curative acts, and most of them are decided upon provisions of State Constitutions differing from ours. The history of legislation as to school lands is found in act February 3, 1843; act January 1, 1861, p. 288; Acts 1875, No. 80; Manf. Dig., §§ 1198, 1200, 6291, 6298, 6301; act of 1853, "Revised Statutes of Arkansas," 994-8; chap. 145, p. 926, Digest of Statutes of Arkansas, p. 927; Gantt's Digest, § 5570, etc. The collector is authorized to make deeds, etc.

2. Grady's title is valid. 49 Ark. 172; act of 1869. The collector was authorized to make the deed and the land was paid for. The sale was valid. 71 Ark. 484; 85 Id. 25; Ib. 372; 21 Id. 240.

3. The notations under the head of "Remarks" of the original plat book are ancient records and admissible in evidence. 73 Ark. 27; 17 Id. 203, 218-19. See also 27 F. 160; 1 Greenl. Ev. (16 ed.), 575-B; 33 Ga. 565; 2 Howard, 496; 27 So. 259; 11 Ala. 1028; 61 S.W. 695; 10 R. C. L., p. 1097, § 299.

4. Upon the subject of ancient records. See 50 U.S. (L. ed.), 125; 9 Id. 1137; 29 A. 376; 5 Tex. Civ. App. 650; 6 Vt. 170; 114 N.W. 133; 4 Watts & S. 378; 1 Dallas, 20; 28 Mich. 521; 26 A. 58; 57 Pa.St. 13; 32 Vt. 183; 12 Wheaton, 69; 3 Watts, 9; 10 Sar. & R. 383; 11 Eng. R. C. 349; 2 Metc. (Mass.), 83; 54 So. 415; 56 F. 483; 99 U.S. 660; 25 U.S. (L. ed.), 306-7; 1 Greenl. Ev., § 483.

5. The act of 1911 is valid and constitutional and perfects the title of Taylor and Armstrong. It is simply a curative act. 3 Ark. 285; 25 Id. 101; 27 Id. 419; 48 Id. 307; 122 Id. 82; 100 Id. 175; 122 Id. 291; 86 Id. 231; Ib. 412; 71 So. 270; 73 S.W. 700; 47 Mo. 189; 15 Cal. 575; 16 Id. 221. Adverse possession, paying taxes, etc., applies to school lands. 232 U.S. 168; 38 Ala. 600; 63 Ark. 56. The statute runs against the State. 38 Ala. 600; 26 So. 245; 12 Id. 233; 57 P. 324; 24 So. 962; 56 P. 513.

The act is not unconstitutional. 18 How. 173; 232 U.S. 168. It is simply a curative act. 71 So. 270; 57 Id. 967; 118 N.W. 415; 115 P. 687; 2 Col. 411; 15 Cal. 530; 16 Id. 220; 133 U.S. (33 L. E.), 631; 103 Ark. 446.

6. Act No. 80, December 14, 1875, is a valid curative act, and confirms the title in Taylor and Armstrong. Cases supra.

7. None of the cases cited by appellant are in point.

8. The curative acts do not violate the United States Constitution. 19 Ark. 308, and cases cited supra.

Counsel for appellants, in reply.

1. Spires' testimony is not material. A sale for worthless bonds or scrip of no value is void. 64 N.J.Eq. 584. If the memorandum is competent, appellees are bound by it and shows payment in worthless Confederate money.

2. These ancient memoranda do not bind the State, and do not show valid payment or deeds made. The State is not estopped. 93 Ark. 401. The proof of these memoranda is not sufficient. 56 F. 483; 99 U.S. 660; 64 Ark. 100.

3. The act 183, 1905, as amended by Act No. 10, Acts 1911, is not valid and constitutional even as a curative act. 43 Ark. 421. It is beyond the power of the Legislature. See 106 Ind. 207; 43 Ark. 156; 60 Id. 269; 43 Id. 420; 76 A. S. R. 322; 41 Md. 533; 80 N.W. 171; 50 Col. 388, etc.

STATEMENT OF FACTS.

On the 13th day of June, 1917, the State of Arkansas for the use of the common schools brought separate suits in ejectment in the circuit court against F. W. Taylor W. B. Armstrong, N. H. Grady and D. J. Darr to recover certain lands in Craighead County, Arkansas. The lands in question were sixteenth section lands and were held by the parties under a claim of ownership by purchase from the State.

On motion and by consent of all parties the causes were consolidated and tried together before the court sitting as a jury. After the commencement of the suit Darr sold his interest in the lands held by him to the defendant, Armstrong, and the cause of action as to Darr was dismissed. The circuit court made a general finding of law and fact in favor of each of the defendants, Taylor, Armstrong and Grady.

From the judgment rendered the State has appealed. The facts necessary for a determination of the issues raised by the appeal are sufficiently stated in the opinion.

HART, J. MCCULLOCH, C. J., and SMITH, J., concur in the judgment.

OPINION

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

The majority of the court is of the opinion that the question of whether or not the State has granted these lands to the defendants is a judicial one, dependent upon the facts, and that the finding of the circuit court in favor of the defendants can be sustained on the doctrine of presumptions of grants as announced in Carter v. Goodson, 114 Ark. 62, 169 S.W. 806. The principle upon which this doctrine rests arises from the general infirmity of human nature, the difficulty of preserving muniments of title, and the policy of supporting long and uninterrupted possession of lands. Ricard v. Williams, 20 U.S. 59, 7 Wheaton (U.S.), 59, 5 L.Ed. 398.

In Beall v. Lynn, 6 H. & J. 236, the court, in the discussion of this doctrine, said: "The grant of incorporeal hereditaments is often presumed from the undisturbed user thereof for a length of time. Grants from the Crown, in England, are presumed, from length of possession, and here even proprietary grants, under certain circumstances, are presumed. In general these presumptions are bottomed upon the existence of certain facts, which can leave but little doubt upon the mind of the truth of the fact which we are called upon to presume. They frequently, too, derive their force and efficacy from that vigilance with which the law guards ancient possessions, which, sooner than they should be disturbed, presumes that they had in contract a rightful commencement."

In that case it was held that a patent or grant for land in case of a peaceable and uninterrupted possession of upwards of sixty years, together with the payment of quit-rents or taxes, may be presumed to have been formerly issued, and it was also held that such presumption was one of fact and not of law. See also Matthews v. Burton, 58 Va. 312, 17 Gratt. 312.

In State v. Wright, 41 N.J.L. 478, it is said that the doctrine of presumption against the Crown, where the adverse claims could have had legal inception is recognized in many cases. This doctrine has been also recognized in cases in which the United States was a party. United States v. Chaves, 159 U.S. 452, 40 L.Ed. 215 16 S.Ct. 57; Hays v. United States, 175 U.S. 248, 44 L.Ed. 150, 20 S.Ct. 80. In the latter case the court recognized that such presumptions are founded upon the consideration that the facts are such as could not, according to the ordinary course of human affairs, occur unless there was a transmutation of title to, or an admission of an existing adverse title in, the party in possession. Consequently the court held that such presumptions may be rebutted by contrary presumptions; and never fairly arise where all the circumstances are perfectly consistent with the nonexistence of a grant. The court also held that the presumption is subject to the limitation that where title is claimed from a deed which is shown to be void, it will not be presumed that there was an independent grant, or where surrounding circumstances are inconsistent with the theory of the grant. So in that case the court said there was no evidence to justify it in believing that a legal grant could ever have been made. In that case Hays produced oral testimony tending to show a grant of lands by the Governor of New Mexico and an order upon the alcalde to put him in possession; and also gave evidence tending to show that...