Winn v. Campbell

• Decision Date: 28 March 1910
• Citation: 126 S.W. 1059,94 Ark. 338
• Parties: WINN v. CAMPBELL
• Court: Arkansas Supreme Court

126 S.W. 1059

94 Ark. 338

WINN v. CAMPBELL

Supreme Court of Arkansas

March 28, 1910

Appeal from Ouachita Circuit Court: George W. Hays, Judge; affirmed.

Judgment affirmed.

E. L Carter and J. H. Harrod, for appellant.

One who purchases land from a patentee of the State is entitled to presume that the patent was issued to the person entitled to receive it. 76 Ark. 525. The patent is sufficient evidence of title. 31 Ark. 609; 39 Ark. 120. A decree of a court of equity cannot be attacked collaterally, but must be attacked by bill of review in a direct proceeding. 43 Ark. 34; 11 Ark 519; 66 Ark. 1; 72 Ark. 101. This suit is in the nature of a proceeding to confirm a tax title, and the provisions of the statute do not apply. 74 Ark. 253; 75 Ark. 176; 76 Ark. 465; 73 Ark. 27; 76 Ark. 146.

Gaughan & Sifford, for appellee.

The whole record of the case must be looked to, which includes papers filed as well as record entries. 86 Mo. 358; 16 S.W 831; 52 Ark. 312; 57 Ark. 54; 55 Ark. 35.

OPINION

WOOD, J.

The appellants instituted this suit against appellees for the possession of certain lands in Ouachita County. The lands were granted to the State by the United States on the 4th of September, 1841, and were Internal Improvement lands. The State, through her Commissioner of State Lands, issued her deed to Oscar H. Winn and R. F. Diebel, conveying to them the lands in controversy November 1, 1905, for the consideration of four hundred dollars. Diebel conveyed his interest to Winn, and Winn conveyed to appellant, J. R. B. Moore. This is the title under which appellants claimed.

The appellees admitted that the lands once belonged to the State as Internal Improvement lands, and that the State issued her patent to Oscar H. Winn and Robert F. Diebel. But appellees allege that when the deed was executed to Winn and Diebel in 1905 the State of Arkansas had no title to said lands, for the reason that said lands were conveyed by said State of Arkansas to one William E. Powell, January 30, 1848, and that appellees and their grantors had been in possession of the lands for twenty years, holding by mesne conveyances from Powell.

It appears from the record that the State sold the land in 1848 to one William E. Powell on a credit, taking his notes for the purchase money. Proceedings were instituted in the chancery court of Pulaski County under the act of the General Assembly of 1887 (Kirby's Digest, §§ 4848 and 4849), to enforce the lien of the State for the purchase money, and a decree was entered on the 5th of December, 1887, ordering the lands sold, and the lands were sold under that decree to the State. The State then at the time she sold to appellants Winn and Diebel held under that decree. The appellants must recover upon the strength of their own title. It is not a question of whether appellee, Campbell, has title. He and those under whom he claims show possession from 1866. Appellants to oust him of possession must show title in themselves. Have they shown that the decree of the chancery court of Pulaski County was valid?

The act under which the suit was brought, among other things, provides: "In bringing said suits it shall not be necessary to make the purchaser or purchasers or his or their heirs and legal representatives, or the occupiers of said lands, or any other person defendants, but the complaint shall pray that notice be given of the pendency of the suit, as hereinafter provided, and the suit shall proceed as in actions in rem." Section 4848.

"When the bill has been filed the clerk of the Pulaski Chancery Court shall docket the case, and shall make an entry thereof in his record of the proceedings of the court, which shall state the general object of the bill, etc.; * * * a copy of this entry, duly certified by the clerk, shall be published by four successive weekly insertions in a newspaper printed in Little Rock, and in a newspaper printed in the county in which such lands are situated, the last insertion of such publication being two weeks before the first day of the next term of the chancery court, the same being stated, at which all persons interested shall take notice thereof. And to suits so begun and advertised, if no person shall appear and defend in his or their own rights, the court shall at the term after the notice has been given, as aforesaid, declare the lands subject to the lien of the State that shall be proved to extend over them, and enter a decree of foreclosure and sale." Section 4849, Kirby's Digest.

The publication required by the statute was intended as a substitute for personal service, and, in order to give the court jurisdiction, compliance with the terms of the statute was imperative.

The statute provides that the "complaint shall pray that notice be given of the pendency of the suit as hereinafter provided." It is after provided that the clerk "shall docket the case and make an entry thereof in his record of the proceedings of the court, which shall state the general objects of the bill, and what lands it proposes to subject to foreclosure," etc., and "a copy of this entry, duly certified by the clerk, shall be published," etc. It will be observed that the statute requires an entry of record showing what lands are to be "subject to foreclosure." The record entry recites as follows:

"The State of Arkansas has this day filed her complaint in equity to enforce her vendor's lien upon the following described lands, towit: The east half of the southeast quarter of section 2, township 15 south, range 19...