State v. Wilson

• Decision Date: 28 April 1930
• Docket Number: No. 306.,306.
• Citation: 27 S.W.2d 106,181 Ark. 683
• Parties: STATE ex rel. ATTY. GEN. v. WILSON. SAME v. KENT.
• Court: Arkansas Supreme Court

27 S.W.2d 106

181 Ark. 683

STATE ex rel. ATTY. GEN. v. WILSON.

SAME v. KENT.

No. 306.

Supreme Court of Arkansas.

April 28, 1930.

Appeal from Circuit Court, Hempstead County; W. H. Arnold, Special Judge.

Appeal from Hempstead Chancery Court; C. E. Johnson, Chancellor.

Suit by the State, on the relation of the Attorney General, against J. H. Kent and others, and petition by the State, on the relation of the Attorney General, against Wilson, County Judge, and others, for a writ of certiorari. From orders sustaining demurrers to the complaint and petition, complainant and petitioner appeals.

Affirmed.

Hal L. Norwood, Atty. Gen., and Coleman & Riddick, of Little Rock, for appellants.

Lemley & Lemley and O. A. Graves, all of Hope, and L. F. Monroe, of Washington, Ark., for appellees.

BUTLER, J.

As the two cases depend upon the same state of facts, they have been consolidated, the question in both cases being the validity of a sale of a sixteenth school section in Hempstead county, Ark. The sale was ordered and made pursuant to authority contained in sections 2, 3, 4, and 5 of Act No. 344 of the Acts of the General Assembly of 1919, p. 256, the provisions of which that are material to issues involved are as follows:

"Section 2. It shall be lawful for the county court of any county in which any permanent school lands and lots, as defined in the preceding section, are situated to order the same sold at public auction by the sheriff in legal subdivision upon the application of any person who may desire to purchase the same, and who will deposit with the clerk of said court a sum sufficient to pay the costs of the appraisement, the estimate of the timber thereof, if any of commercial value, the survey thereof if one is necessary, and the advertisement and other cost of sale. Such applicant shall also file a written guarantee that he will bid at said sale at least two and 50/100 ($2.50) dollars per acre, if it is land the full appraised value if it is lots; * * *

"Section 3. The county court shall appoint three disinterested householders of said county who are familiar with real estate values to view and appraise said lands and lots and cause the timber, if any, on said land to be estimated. Each of said appraisers shall take an oath which shall be filed in said court, that he does not desire or intend to buy said land or lots or any part thereof, and that he will not directly or indirectly be or become interested in the purchase thereof, at the sale to be made by the sheriff. Said appraisers shall each receive for his services the sum of one dollar and fifty cents ($1.50) per day for each day they are engaged in such service.

"Section 4. The sheriff shall give notice by publication in some newspaper published in the county where the land is situated at least four weeks before the day of sale, that he will sell said land or lots at the courthouse door. Upon the day of the sale the sheriff shall offer the lands or lots at public auction in separate legal subdivisions, if land, and by separate lots, if town lots. * * *

"Section 5. The sheriff shall without delay report all sales to the county court, which may reject or confirm the same. If any sale be rejected the county court may direct the sheriff to again advertise and offer the land or lots for sale. If the sale be confirmed by the court, the sheriff shall execute and deliver to the purchaser a certificate showing that he has purchased the land. * * * Upon the presentation of the certificate of purchase to the Commissioner of State Lands, Highways and Improvements, the purchaser of the lands or lots as the case may be, his heirs or assigns shall be entitled to a deed from the said commissioner for the land or lots described in said certificate, and the said commissioner is hereby authorized to make conveyance of any lands or lots sold under and by virtue of this Act."

As provided by said act, the Arkadelphia Milling Company filed a petition in the Hempstead county court asking for the sale of section 16, township 13 south, range 25 west, making the deposit and bond required. Pursuant to the petition, the court made an order on the 7th of June, 1920, directing the sale of the land and appointing appraisers as required, and, on the 14th day of July following, the sheriff filed his report of the sale with the county court which, on September 6, 1920, made an order approving and confirming the sale which is as follows:

"In the county court of Hempstead County, State of Arkansas.

"Instrument, Report of Sale Date, September 6, 1920 Record Book, County Record Z at page 37.

"In the Matter of the Sale of Lands in Section 16, Township 13 South, Range 25 West.

"Now on this day is presented to the court the report of R. L. Keel, Sheriff of Hempstead County, Arkansas, of his sale of lands located in section 16, township 13 south, range 25 west, in Hempstead County, Arkansas, together with the petition, the report of the appraisers, and the proof of publication filed herein, from which the court finds that a petition in due form of law was presented and approved by the court; that the court appointed three disinterested householders of said county to appraise said lands, who were familiar with real estate values, and to cause the timber on said lands to be estimated and after subscribing the oath as prescribed by law, said appraisers did view and appraise said lands and estimate the timber thereon as prescribed by law, and afterwards caused their said appraisements to be filed with this court. And the court further finds that the sheriff of Hempstead County did give notice of said intended sale by publication in the manner prescribed by law, at least four weeks before the day of sale, and that upon the day advertised for said sale at the court house door of said county in separate tracts of 40 acres each between the hours of ten o'clock in the forenoon and three o'clock in the afternoon, and at said sale so had and made by said sheriff, the following parties became the purchasers of said lands at the prices set opposite their respective names, to wit: * * * and it further appearing to the court that the price received for said land was adequate and not less than the market value thereof and more than two dollars and fifty cents per acre, and that said sale should be in all things confirmed and approved by the court.

"It is therefore ordered, considered, and adjudged by the court that said sale so made by the sheriff be and the same is hereby in all things approved by the court and the sheriff of Hempstead County is hereby ordered to issue to each purchaser of said lands a certificate of purchase, to the end that they may receive a deed for same as in such cases provided by law."

On the 18th day of April, 1929, the appellant filed this complaint in the Hempstead chancery court against J. H. Kent, the original purchaser of four of the 40's of the said sixteenth section, and by amendment later the subsequent purchasers of land from Kent were made parties to the suit. In this complaint it was alleged that the sale of the land to Kent and the order of the court confirming the sale were void, and prayed for cancellation of the deed from the commissioner of state lands to Kent, and for cancellation of deeds from Kent to those holding under him, and for judgment for the value of timber cut and removed from the land.

The defendants (appellees) interposed a demurrer, which demurrer was sustained, and, from the order sustaining same, plaintiff (appellant) appealed to this court. Subsequently plaintiffs filed a petition for a writ of certiorari in the Hempstead circuit court, in which it prayed that the judgment of the county court confirming the sale to defendant Kent be declared to be void. To this petition the subsequent purchasers were made parties defendant on their petition, and the purchasers of the remaining eight 40-acre tracts were also made parties defendant on that petition. Thereupon, all of the parties defendant demurred to the petition for certiorari, which demurrers were sustained by the court. An appeal was prosecuted therefrom, which, as before set out, has been consolidated in this court with the chancery court proceedings.

The contention of plaintiff in the court...