McCauley & Co. v. Six

Eakin, J. This is the same case which was remanded by this Court for proper parties at the November term, 1879. 34 Ark. 381. See that opinion for the pleadings and points presented thereby. Proper parties were made, and the cause was heard upon the merits. The complaint was dismissed for want of equity and complainants appeal. The complainants, mortgagees under Six, stand in his shoes; and the contest is between Six and Rushing’s repreresentatives upon their respective deeds from the Auditor. The former claims under a statutory donation deed, and the latter claims under a deed executed to one whose improvement had been taken, and to whom no tender of the double value had been made within three months. The first question arises upon the donation deed to Six. ... r Was it originally valid? It has been several times held by this court that these donations are matters of grace. The donee is not required to pay any of the taxes for which the land was forfeited, and he must comply with all the statutory conditions of the grant, without any regard to their policy or necessity. Surginer Ad. v. Paddock et al, 31 Ark., 528; Simpson v. Robinson, 37 Ark., 142. By section 3895 Gantt’s Digest, the donee is required, alter completing the improvements required by the tions of the deed, to obtain from some Justice of the Peace residing in the township where such land is located, a certificate describing the land; that he had been personally on it within ten days; that the improvements were bona fide, and substantial, etc. This certificate, attested by the Justice and filed in the Auditor’s office, is made evidence that the donee has complied with the requirements of the conditions regarding improvements. The certificate shown in this case is not that of a justice residing in the township of the land, but of one residing in another. It was not, therefore, evidence of the fact that the improvements had been made. But the statute does not make it exclusive evidence, nor make the filing of such certificate a condition subsequent, upon failure of which the deed becomes void. The essential conditions to the validity of the deed were prescribed by section 3894 of Gantt’t Digest. They were that the donee should reside upon, improve and cultivate at least three acres; or without residence, should, within eighteen months, clear, or have cleared, fenced, improved and placed in readiness for cultivation at least five acres. These were the expressed conditions upon failure of which it was provided that the land should revert to the State, and be again subject to sale or donation. The certificate of the Justice was directed as evidential. Without it the donee retained the burden of proving the matters aliunde, and incurred the risk of failure from loss of witnesses. The evidence in this case shows that the proper improvements were in fact made in proper time. By section 3896 the donee was prohibited from selling the land until the requirements as to improvements had been fulfilled, and should he sell at all it was directed that a copy of said certificate filed in the Auditor’s office should be recorded with the conveyance. This concerned only the matter of recording, and the benefits to be derived from that, in preserving evidence of the improvements. The language of the act is not that all conveyances made without recording said certificates shall be void, but that “ all conveyance of such right before the land shall have been improved, as required by this act, shall be void; and the lands shall revert to the State.” If the lands have been, in due time, properly improved, and that be shown, a conveyance or mortgage of them would be good between the parties, unless the deed from the State had been annulled for some other cause, to be shown as matter of defense. This leads to a consideration of the answer of Rushing, adopted by his heirs and administrator, which, in effect, is that at the time when the donation was made to Six, Rushing had upon the land a valuable and substantial improvement; that Six failed within three months to pay or tender him double the value of said improvements; that thereupon Rushing filed with the Auditor an affidavit of these facts, as required by law, and at the proper time was allowed to purchase from the State the land in controversy, by paying all arrearages of taxes charged upon it. A copy of the deed is exhibited. The allegations of the answer are sustained by proof, which shows that Rushing, when the lands were donated, was the owner of a valuable improvement on the land. He was no less so because he had made it originally as an administrator, supposing it to be on land of the intestati; or because he made it for any other purpose. He had no right to make it as administrator, and the evidence sho ws that it was made upon his own credit or with his means. He was the owner/ The statute does not regard the motives which prompted the improvements. The case of Simpson v. Robinson, which incidentally touches this point, (37 Ark., 132), was a case in equity decided upon its peculiar circumstances, and is not to be taken as declaring as a rule that the owner of an improvement, in order to defeat a donation claim, must show that he made it with reference to a future ’ purchase from the State of the land upon which it is situated. There the contest was really about two tracts which had been forfeited at different times. Robinson claimed one of them under a purchase at a Chancery sale in favor of the State; holding that defined tract under a parol contract from the purchaser, and making improvements upon it. The lands having been returned as forfeited for taxes, before the Chancery sale, together with adjoining lands. Simpson obtained from the State Land Commissioner a donation which included Robinson’s tract, and failed for three-months to tender Robinson the double value of his improvements. The latter thereupon made a premature effort to purchase from the State for taxes, not only his own tract, but all. The Auditor’s deed to Robinson was held void because it was premature, and it was remarked in passing that it would not have been equitable to have allowed him to use improvements, so made, to defeat a donation deed to an adjoining tract. The remark is to be confined to the peculiar equities of the case. The improvements were upon his own land, held by superior title, and made for its enhancement in value. The decision oí the Court did not involve the present question in any manner, as it was based upon the ground that the land of Robinson was not in fact subject to donation at all, inasmuch as all the right of the State had passed to the purchaser at the Chancery sale, and he himself took nothing by the Auditor’s deed for taxes. He was left in possession of what he had, regardless of either, his title resting upon the superior lien of the State, to foreclose which the sale had been made in Chancery. The act of January 11, 1851, in force when the transactions occurred, provided in Sec. 1 that any person obtaining a donation from the State of forfeited lands should, within three months from the date of his deed, pay to the owner of any improvement thereon, double its value, and ' should within thirty days thereafter file the receipt with the Auditor. This Six did not do. The statute proceeds to enact: that, if it be not done, such donee shall forfieit all right to the land, and the owner of the improvement, upon filing.with the Auditor an affidavit that he owned an improvement on the land when it was donated, and that the donee has not made nor tendered the required payment, “shall be allowed to purchase said land, including his improvement, by paying all arrearages of taxes which may be charged thereon, in the same manner as if this land had never been donated, and the Auditor shall execute to such purchaser a deed,” etc. There is no question in this case but that the application to purchase had been made in apt time, and in a regular manner by Rushing, and that the deed had been made. The evidence • shows that he did own a valuable improvement on it when it was donated, and that being established, the original donation deed was forfeited by the failure of the donee to make payment and file the receipt within the prescribed time. It is not necessary to discuss the extent of the rights of Rushing on said forfeiture. Six had no title left whatever, and his mortgages cannot stand in better attitude than he would have done himself in a suit against Rushing for title. They knew that Six’s only title rested upon a donation, and cannot complain if they are held to show that all the requirements of the statute have been fulfilled, or held to a forfeiture upon showing that they have not. Affirmed.