Diver v. Friedheim

Smith, J. Friedheim brought ejectment against Diver for W. £ N. E. £, E. N. W. £ and N. W. £ S. E. £ See. 17, T.12 S. R. 18 W. The evidences of his title consisted of a patent from the United States to Linzey Meek, made in the year 1881, but based upon an entry in 1860, and deeds of conveyance from the patentee and his wife to the plaintiff in 1880 and 1881. .Diver’s chain of title was, 1st. A deed made in 1876 by Linzey Meek to one Donaldson for E. £ N. E. £, S. E. £ N. W. £ and N. W. £ S. E. £ of said section 17 ; 2d. An alleged lost deed from Donaldson to J. L. Meek; and 3d. A deed of J. L. Meek to Diver for the same lands that are described in the deed to Donaldson. The answer alleged that there was a misdescription of the first tract (E. £ N. E. £ being used for W. £ N. E. £) and an unintentional omission of one parcel of forty acres (N. E. £ N. W. £) in the defendants title papers. And the prayer was that the deeds to plaintiff might be canceled as a cloud upon the defendant’s title. The cause was transferred to Chancery and the plaintiff filed are-ply, treating the answer as a cross-bill. He admitted that Linzey Meek had conveyed the lands to Donaldson in 1876, but insisted that this trade had afterwards been rescinded by mutual consent and that Donaldson had surrendered his deed and the-possession of the land to his vendor. The appellant, Keith caused himself to be made a party defendant to the suit and set up sundry' tax-titles, founded upon forfeitures of the lands for non-payment of state and county taxes for the years 1875 and 1876. The decree below was in favor of the plaintiff for all of the lands, i. tax TEE : taxable!"11611 The claim of Keith was without merit. These lands 11'A taxable in 1875-6. This is not because the government had not at that time parted with the legal title, for lands that have been entered an paid for become at once and before emanation cf the patent subject to taxation. Witherspoon v. Duncan, 21 Ark. 240; affirmed on error, 4 Wall. 210. But the reason is that the right of Linzey Meek to a patent was not ihen complete. He had purchased the land in 1860 from the proper agent of the government, at the price, as he supposed, of twenty five eents per acre; had paid $50 and had received a certificate of entry. But when the transaction was reported to the General Land Office at Washington, it was discovered that the price was seventy five cents per acre. The payment was therefor short by $100; the entry was suspended and the patent was not issued until the deficiency was made good. This was not done until the 27th of October, 1880, when the defendant Diver paid the amount due the Government. Thus an act remained to be done, going to the foundation of Linzey Meek’s right, before the equitable title was fully vested in him. Railway Co. v. Prescott, 16 Wall. 603; Railway Co. v. McShane, 22 Id. 444. The defendant, Diver, wholly failed to connect himself with the title of the patentee. His grantor, J. L. Meek, never had any interest, legal or equitable, in the lands. The alleged lost deed from Donaldson to him had no existence in fact. It is apparent from J. L. Meek’s own testimony, not only that he had no deed from Donaldson, or from any other person, but that he had no contract with Donaldson in relation to the land. According to his own version, he merely found the deed of his brother, Linzey, to Donaldson in a house where it had been left when his brother removed from the county. He took possession of the paper and he says he afterwards bought the land from his brother. In this he is not borne out by his brother’s evidence and., it is not the title set up in the answer. But if the fact was as he states it, the purchase was a void one for the want of any writing. And it was not taken out of the operation of the statute of frauds by any delivery of possession. not'Stored {,°y fu“endor of dsed. to Mm. This leaves the plaintiffs title clear to all of the lands which Linzey Meek had not previously conveyed to Donaldson. With regard to them, the attempted cancellation by parol and the surrender by Donaldson of his deed and of the land did not operate to re' vest title in Linzey Meek. In those lands, therefore, Linzey Meek had nothing in 1880-1, which he could convey to the plaintiff. Cunningham v. Williams, 42 Ark. 170, and cases cited. The Donaldson deed does not appear to have been recorded ; but the plaintiff bought with a full knowledge of its existence. The decree is affirmed so far as it relates to W. \ N. E. i and N. E. J N. W. i of sec. 17; but as to the remaining eighty acres, viz : S. E. i N. W. i and N. W. i S. E. it is reversed and a decree will be entered here, dismissing the plaintiff’s complaint. No affirmative relief can be given to Diver in respect to these; but he Avas in possession at the commencement of the suit and that possession must be respected until a better right is shown. Diver is also entitled to his costs in this court.