Thweatt v. Howard
| Citation | 59 S.W. 764,68 Ark. 426 |
| Parties | THWEATT v. HOWARD |
| Decision Date | 17 November 1900 |
| Court | Supreme Court of Arkansas |
Appeal from Prairie Circuit Court in Chancery, JAMES S. THOMAS Judge.
Decree affirmed.
Rose Hemingway & Rose, for appellants.
One who has no interest in land can not contest a petition for the confirmation of a tax title thereto. 1 Ark. 472; Sand. & H Dig., § 627. Appellees' claim is based upon a fraudulent entry under the swamp land act (Gould's Dig chap. 101, § 15, as amended by act February 8, 1859), and hence void. By issuing a subsequent patent to another claimant, the land department adjudged appellees' entry void; and, until this ruling is reversed by the courts, it must stand. 171 U.S. 93, 99; 7 Wheat. 218; 163 U.S. 321, 323; 169 U.S. 363; 34 Ark. 213; 24 Ark. 40; 31 Ark. 426. The act of March 23, 1871, is valid. 95 U.S. 628; 104 id. 668; 137 id. 246; 168 id. 90. There would be no valid conveyance of the patented property before the issuance of the patent. 34 Ark. 762; 47 id. 357; 64 id. 361.
Eugene Lankford, for appellees.
The sale was void because the record showed publication of the notice of sale for only eleven days, instead of two weeks, before the sale. Sand. & H. Dig., § 6605; 30 Ark. 661; 55 Ark. 192; 55 Ark. 213; Black, Tax Titles, 83; Cooley, Taxation, 335. Any right, title or interest, whether legal or equitable, vested or inchoate, is sufficient to entitle one to redeem from a tax sale or contest its confirmation. Black, Tax Titles, 189; 10 L.R.A. 292; Cooley, Taxation, 366; 39 Ark. 580; 1 Ark. 472. No one but the state had the right to complain that the parties who made first entry did not comply with the law. 36 Ark. 471; 41 Ark. 465; 31 Ark. 279; 54 Ark. 251; 47 Ark. 199; 1 N. Dak. 284; 19 Am. & Eng. Enc. Law, 19, 300. When the lands were paid for, and the certificates of purchase issued, the equitable title and the control of the land passed out of the state, and could not be re-vested by any act of its officers. 46 Ark. 18; 21 Ark. 240; 9 How. 328; 20 Am. Dec. 490; 30 Ark. 761; 19 Am. & Eng. Enc. Law, 334; 24 Ark. 448; 26 Ark. 60; 36 Ark. 334; 49 Ark. 87; 44 Ark. 452; 1 Ind. 343. The acts of the officers of the land department in passing upon the questions of fact are conclusive. 24 Ark. 431; 8 Ark. 328; 24 Ark. 40; id. 402; 142 U.S. 162; 139 U.S. 508; 125 U.S. 625; 163 U.S. 321; 46 Ark. 18, S. C. 20 Am. Dec. 490. But, after the entry is once made, the officers of the land department cannot set aside or cancel such entry and re-sell the land. 44 Ark. 455; 21 Ark. 240; 49 Ark. 87; 42 Ark. 170; 147 U.S. 165; 171 U.S. 93; 25 Kas. 340; 13 Wall. 72; 91 U.S. 330; 2 Wall. 605; 78 Wis. 501; 128 U.S. 456; 106 U.S. 447; 41 Mich. 423; 6 Wall. 409; 30 Kas. 67; 34 Fla. 130; 142 U.S. 161. The acts of the different departments of the governments of the seceded states relating to their own affairs and not impairing the authenticity of the general government, are valid and obligatory. 24 Ark. 286; 29 Ark. 414; 30 Ark. 193; id. 761; 37 Ark. 110; 7 Wall. 700; 15 id. 429; 17 id. 570; 96 U.S. 192; 97 U.S. 454; 106 Cal. 486. The patent relates back to the date of the entry. 6 Wall. 402; 13 Wall. 92; 32 F. 195; 21 How. 228.
Appellants brought this action in the Prairie circuit court to confirm the title to certain lands, acquired under a sale thereof that was made for the purpose of collecting the taxes assessed against them for the year 1890; describing the lands in their petition, and alleging that they had been purchased at the tax sale by the Hammett Grocer Company, which had sold to George C. Cooper, who had sold to petitioners, the appellants. Appellees answered the petition of the appellants, and claimed a part of the lands purchased at the tax sale, and traced their title to the same through various persons to the state of Arkansas; the purchases from the state by the persons through whom they claim title being made in 1862. They also alleged that the lands in controversy were not advertised to be sold for the taxes of 1890 by weekly publications in a newspaper for two weeks between the second Mondays in May and June, 1891 as required by law, and that the sale of the lands for such taxes was consequently void. The appellants replied to the answer, and alleged that the purchases from the state or entries through which the appellees claim title were illegal and fraudulent; that the parties claiming under said purchases failed to comply with an act entitled "An act to define the condition of certain state lands, and for other purposes," approved March 23, 1871; that the said purchases or entries, by reason of such failure, became void on the 31st day of March, 1872'; and that, on the first day of April, 1872, D.C. Duell entered the lands in controversy in the land office of the state, and received a certificate of purchase, which he afterwards assigned to B.D. Williams, to whom the state of Arkansas issued a patent therefor, and that Williams afterwards conveyed the lands to the Hammett Grocer Company, which conveyed them to George C. Cooper, who conveyed to appellants.
Evidence was adduced at the hearing of this cause tending to prove that the lands in controversy were purchased by various persons from the state of Arkansas in the year 1862, and were conveyed by them to other persons, and by them and others, through deeds and a will, to the appellees; that D. C. Duell entered these lands as swamp lands, in the land office of the state, on the first day of April, 1872, and received a certificate of purchase, and afterwards assigned it to B. D. Williams, to whom the state of Arkansas issued a patent; that Williams afterwards conveyed the lands to the Hammett Grocer Company, and it conveyed them to George C. Cooper, and he conveyed to appellants. Evidence was also adduced for the purpose of showing that the lands were never occupied by the persons who entered them in 1862, and that there were no ditches on them in 1862, 1865 and 1866, and in those years there were no indications that any ditches had been made on them; and it was proved that the list of lands returned delinquent on account of the non-payment of the taxes of 1890, of which the lands in controversy were a part, was not published weekly for two weeks between the second Monday in May and the second Monday in June, and was published only eleven days.
The circuit court did not decide whether the appellees had a valid claim, but found that the sale of the lands for the taxes of 1890, which appellants asked the court to confirm, was void, and refused to confirm the same as to the lands in controversy, because only eleven days' notice of the sale was given; and, finding that the petitioners and their grantors paid a certain sum as taxes, interest and costs for which the lands were chargeable, declared it a lien upon them, and ordered the lands sold to pay the same. The order was made as to the lands which were not in controversy. Petitioners appealed.
The list of lands returned delinquent on account of the non-payment of the taxes of 1890, of which the lands in question were a part, was not published in the manner prescribed by law. This rendered the sate which the appellants asked the court to confirm null and void. Pennell v. Monroe, 30 Ark. 661; Townsend v. Martin, 55 Ark. 192, 17 S.W. 875; Martin v. McDiarmid, 55 Ark. 213, 17 S.W. 877.
Should the sale have been confirmed, notwithstanding its nullity? In speaking of what shall be done in the hearing of a petition for confirmation of sales, the statutes say: Sand. & H. Dig., §§ 633, 635, 636.
The proceeding to confirm sales of land is not authorized by the statute when any one is in possession of the land claiming adversely to the person seeking confirmation. If no one claiming adversely is in possession, and the other conditions prescribed by the statute are complied with, and any one claiming title to the land opposes the confirmation of the sale, then it is the duty of the court to try the validity of the sale. No investigation or inquiry into the validity of the title of the person opposing confirmation is required by the statute. The person claiming title must, however, do so in good faith. He should not be permitted to contest the validity of the sale solely for the purpose of defeating its confirmation. The privilege granted to him is for the purpose of enabling him to protect his interest in the land; and it is necessary and sufficient for him to allege and prove such a state of facts as will show that he might claim in good faith some interest in or right to the land.
The evidence adduced at the hearing of this cause was...
To continue reading
Request your trial