Lawrence v. Zimpleman

W. W. Smith, Special Judge. k title* Zimpleman filed this bill to remove a cloud from his title to a tract of land, by a tax sale made June 9, 1873, for the taxes of 1872, at which Lawrence became the purchaser. He alleges, somewhat indistinctly, that he is in possession of the premises, but this is denied by the answer, and it is averred that Lawrence has had peaceable possession ever since the year 1875. There is not a particle of proof in the record to show with whom the possession is, or whether the land is wild and unoccupied. entitled to To obtain the relief sought, the plaintiff must be in pos- ° ’ 1 t r session when he brings the suit, unless his title be an table one. A Court of Chancery is not the appropriate forum to try a purely legal title. The defendant, if he is in actual possession, is entitled to a trial by jury, unless there are peculiar circumstances bringing his case under some one of the recognized heads of equity jurisdiction. The case of Shell v. Martin, 19 Ark., 139, which holds to’ the contrary of this, was disapproved by Mr. Justice Fair-child/ in Apperson v. Ford, 23 Ark., 746, and has been discredited by the later decisions. Branch v. Mitchell, 24 Ark., 431; Byers v. Danley, 27 Id., 77; Miller v. Neiman, 27 Id., 233; Chaplin v. Holmes, 27 Id., 414; Sale v. McLean, 29 Id., 612; Crane v. Randolph, 30 Id., 579. We cannot presume in favor of the plaintiffs possession, since an issue upon this point was tendered by the answer, and he failed to meet it by proof. It was a jurisdictional fact. The heibe^oodon its face, If, however, Lawrence is not in possession (in which case Zimpleman could not, of course,bring ejectment against him) * still this bill cannot be maintained. The rule is that before a court of equity will interfere to remove a cloud, the title of the adverse claimant must be good upon its face, and it must be necessary to resort to extrinsic evidence to establish its invalidity. Chaplin v. Holmes, supra; Allen v. City of Buffalo, 39 N. Y., 390; Marsh v. City of Brooklyn, 59 Id., 282; Moore v. Cord, 14 Wis., 213. less deed casts no cloud. Now, although Lawrence’s tax deed is assailed, upon the grounds that the taxes had been paid before sale, and the illegality of the sale for that reason depends upon an exter- . nal fact, yet it also appears from the deed exhibited that his title is worthless, and that any attempt to assert it by action would fall by its own weight, without proof in rebuttal. All of the tax sales made in the year 1873, for the taxes of 1872, are void, as held in Vernon v. Nelson, 33 Ark., 748. Moreover, it appears from the recitals of the tax-deed that two tracts of land were sold together, for the taxes due on the- . whole. Such a deed casts no cloud upon the owner’s title. Crane v. Randolph, supra; Pettus v, Wallace, 29 Ark., 476; Pack v. Crawford, 29 Ark., 489; Montgomery v. Birge, 31 Ark., 491; Walker v. Moore, 2 Dillon, 256. The case of Hamilton v. Cummings, 1 Johnson’s Ch’y., 517, cited, by Zimpleman’s counsel, in support of the proposition that equity will decree the cancellation of a deed void upon its face, is no longer law in the State of New York, having been overruled by Cox v. Clift, 2 Comstock, 118; Scott v. Onderdonk, 14 N. Y., 14; Ward v. Dewey, 16 Id., 529; Crook v. Andrews. 40 N. Y., 547; Guest v. City of Brooklyn, 69 N. Y., 513. show title, Besides, there are gaps in Zimpleman’s title, which cannot overlook. It is true that only those whose titles are beclouded need the relief that is here sought, and the act of filing the bill presupposes some obscurity of the title. But it ought to appear that if the cloud raised by the defendant’s unfounded claim were removed, the plaintiff would then have a reasonably clear title. Zimpleman must succeed, if at all, upon the- strength of his own title, and cannot rely upon the weakness of his adversary’s. He exhibits two chains of title. The links of the first chain are, a patent deed of the United States to John Dupas, of’Hot Spring county, in Arkansas, issued in 1855 ; a letter of attorney, from Marie Kaufman, of Alsace, in Germany, who claimed to have been the widow of John Baptist Dupas, and the guardian of his minor children, authorizing Victor Lasaque to sell and convey real estate of the said Marie Kaufman and the said infants. This power, executed in 1875, in the German language, was acknowledged before a notary in Strasbourg and appears in the transcript as translated by a notary in Chicago. Under it Lasaque conveyed to Hanna and Chase, they to Howard, and Howard to Zimpleman. dower re7 mentaUot Passing over imperfections in the acknowledgment of these instruments, there is no allegation or proof of the death of the original patentee, or that Marie Kaufman and her children are his widow and heirs, or that she is the legal of those heirs. Assuming all of these things to be true, she had no interest in the land except her dower, and even this she could not convey to a stranger before allotment. Carnall v. Wilson, 21 Ark., 62; Jacoway v. McGarrah, 21 Ark., 347; Jacks v. Dyer, 31 Ark., 334. Nor had she any right to sell the lands of her wards without license from a court of competent jurisdiction. The head of the second chain of title is a collector’s deed to Jacob Kempner, pursuant to a tax sale of March 9th, 1868, for the taxes of the three preceding years. And this followed by sundry mesne conveyances, connecting Zimpleman with this source of title. i. Tax Deeds, recitais. .This tax sale was had under the provisions of the revenue law contained in Gould’s Digest, chapter 148 ; by virtue of which the collector’s deed was only evidence of the truth of its own recitals. No attempt was made to supplement the deficiencies of the deed by proof aliunde. Now there is no recital that the sheriff filed in the clerk’s office his assessment list for either of those years, or that the County Court ever corrected or adjusted said assessment, or that the clerk ever made out a tax-book, or attached a warrant thereto, or delivered it to the sheriff. For vices like some of these, the tax-deed was overruled in Haney v. Cole, 28 Ark., 299. The judgment of the court below is reversed and the bill is dismissed.