Driver v. Evans

Battle, J. This is a suit in chancery to impeach the validity of a patent issued by the United States to James H. Cannon for certain land in Mississippi county. Plaintiff alleges, substantially, in his complaint, that this land was a part of the swamp and overflowed lands granted to this state by an act of congress, approved the 28th day of September, 1850 ; that his intestate, James Stewart, purchased it from the state on the 16th day of December, 1851 ; that the state of Arkansas selected and reported it as swamp land on the 20th day of January, i860; that James H. Cannon entered it, in the land office of the United States, on the 4th day of November, 1872, as a homestead, under the act of congress entitled “An act to secure homesteads to actual settlers on the public domain,” approved May 20, 1862; that it was conveyed by the United States to James H. Cannon, by patent, on the first day of June, 1875 ; and asks that the patent be set aside and defendant be restrained by injunction from holding or claiming the land under the patent,- and for general relief. James H. Cannon was the defendant in this action at its commencement. He died during its pendency, and it was revived , against his heirs. They are minors, and defend by a guardian ad litem, who answered the above mentioned complaint for them, it having never been answered by Cannon. At the hearing of this action, plaintiffintroduced as evidence, what purports to be a receipt of William W. Sawyer to James Stewart, for a certificate of purchase of the land in question, signed by John C. O. Smith, land agent for the Helena district, and dated the 22d day of July, 1859, and a certificate of J. N. Smithee, commissioner of state lands for the state of Arkansas, certifying that, according to the records and official documents in his office, it appeared the land in question was selected and reported as swamp and overflowed land by the State of Arkansas, on the 20th day of January, i860 ; that James Stewart purchased it from the “old board of swamp land commissioners,” on the 16th day of December, 1851, and that afterwards, on the 22d day of July, 1859, a “holding certificate, No. 205,” was issued to him for it, and that this certificate is still outstanding. No other evidence was introduced to prove that James Stewart ever acquired from the state any interest in this land. Much evidence was- introduced to prove the character of the land as to its being wet and unfit for cultivation. A decree was rendered by the court below in favor of defendants, dismissing the action, and plaintiff appealed. I. Infants:— Not prejudiced by bad pleading The defendants being infants their rights could not be judicially affected, except upon proper 'issues and proof. Their guardian ad litem h'ad no authority to admit anything prejudicial to their interest; the statutes made it her duty to deny every allegation of the complaint prejudicial to them. The statutes of the state and the denials contained in defendant’s answer, therefore made it necessary for plaintiff to prove every material allegation of his complaint. Mansf. Dig., secs. 4957, 5042; Evans, Guardian v. Davies, Admr., 39 Ark., 235. 2. Swamp In order for plaintiff to maintain this action, it was necessary for him to prove by competent evidence that his intestate, James Stewart, purchased the land in question from the state, and thereby became entitled to whatever interest she had in the land, if any. It is unnecessary to decide what interest that was. That question does not arise here and is not considered. If this land was a part of the swamp and overflowed lands granted by congress to the state, and the state never sold or disposed of it, the state alone is competent to impeach the title of defendants, or to complain of any disposition made of it by the United States. Branch v. Mitchell, 24 Ark., 441; Bohall v. Dilla, 114 U. S., 47; Lee v. Johnson, 116 U. S., 48; Sparks v. Pierce, 115 U. S., 408. Kvidence of Plaintiff totally failed to prove that James Stewart purchased the land in question from the state. The receipt of Sawyer and certificate of Smithee were not competent evidence. The receipt was not sufficient to show the existence of a certificate of purchase, nor the certificate of Smithee to prove the contents-of-the records and official documents in the office of the land commissioner. The proper evidence in the last case, in the absence of the originals, is a copy of the record and official documents duly authenticated. 1 Greenleaf on Evidence, secs. 482, 484, 498. Decree affirmed.