Boynton v. Ashabranner

Hnx, C. J. The land in controversy is, the east half of the southeast quarter of section 26 in township 15 north and. range 8 east, being situated in Mississippi County. The appellants deraign title as follows: the Swamp Land Grant to the State of Arkansas; the State deeded it to D. C. Cross December 4, 1866; the Citizens’ Bank of Louisiana obtained a judgment in the Federal Court against D. C. Cross, and this land was sold under execution, --id purchased by the said bank, to whom it was conveyed by the marshal; the said bank conveyed to W. L. Culbertson ; Culbertson and wife conveyed to C. O. Boynton; the widow and heirs at law of D. C. Cross conveyed to C. O. Boynton; the appellants are heirs at law of C. O. Boynton. The appellants also claim under a tax deed and a decree confirming the tax title. The tax title and decree are both attacked, but the view the court takes of the case renders a discussion of those issues unnecessary. The appellee claims to be- the owner under a deed from the State executed December 7, 1889; the State’s title being based on forfeitures for taxes in the years 1869 and 1870. The. forfeitures for these years are shown to be void, and this title is not insisted upon by appellee, other than as giving color of title. The appellee attacks the State’s deed to Cross and the title of the Citizens’ Bank and of Culbertson derived therefrom, and sets up title in himself by adverse possession and by seven years, payments of taxes under color of title in virtue of the act of 1899. These issues will be presented and decided in the order mentioned. 1. The evidence of the conveyance by the State to Cross is a transcript of the record of the Commissioner of State Lands showing that the State, deeded this land to D. C. Cross on December 4, 1866, and it is certified by the Commissioner that the transcript is a true and correct copy of the record of that office, in so far as it relates to this land. This certificate falls within section 3064 of Kirby’s Digest, making such transcripts from the record evidence of the facts therein stated. It is objected that the original patent was not ■ produced or accounted for, and that this evidence is secondary. The court said, through Chief Justice Cockrill, referring to this statute: “The -statute makes a certified copy of such records of equal dignity as evidence as the originals.” Dawson v. Parham, 55 Ark. 286. The State issued a subsequent deed to this land to Jeptha Fowlkes, on the 3d of April, 1867. • This deed recites that the land agent granted a patent certificate to said Fowlkes on the 7th of June, 1853, and, it appearing that the purchase money was fully paid, the conveyance was made by the Auditor. The appellee does not deraign title under this deed, but introduces it seeking to avoid the Cross deed of prior date. It is well settled that a State deed may be attacked in equity for fraud or mistake or other equitable grounds showing that the State had only a naked legal title, and not the real title, when it conveyed. Coleman v. Hill, 44 Ark. 452; Chowning v. Stanfield, 49 Ark. 87. The Court of Appeals of this Federal circuit in Boynton v. Haggart, 120 Fed. Rep. 819, took a different view of the effect of the issuance of the State’s deed, holding it was impervious to collateral attack. But, following the decisions of this court on this subject, the result is the same, because the appellee has not proved that Fowlkes’ purchase was prior to Cross’, nor negatived a valid transfer of the original certificate to Cross. The following excerpt from Dawson v. Parham, 55 Ark. 286, reading Brinkley into Cross and appellant into Fowlkes, fits this case exactly: “The patent to Brinkley was issued in pursuance of the authority granted by the swamp land acts. It is recited that the land agent had previously issued his patent certificate to Brinkley, by virtue of the act of January 20, 1885, as the original purchaser of said land. These recitals show the authority upon which the government assumed to act in issuing the patent. There is a presumption, therefore, that they are true. We must take it then that Brinkley was the original purchaser, until the contrary is proved. The reason for that presumption is made more apparent by a consideration of the act of January 20, 1855, under which the certificate was issued. One of the objects of the act was to afford the swamp land agents the opportunity to adjust conflicting entries. Hempstead v. Underhill, 20 Ark. 337. To that end provision was made to the effect that a certificate previously issued by the swamp land commissioners should be presented for examination to the officers then known as the swamp land agents of the proper district. If the holder was ascertained to be the original purchaser, he received from the agent what the act terms a ‘patent certificate.’ The deed affords evidence, as we have seen, of the fact that Brinkley was the holder of such a certificate, issued in pursuance of this act; and, as thfe officer who issued that certificate is presumed to have acted in conformity to law in issuing it (Rice v. Harrell, 24 Ark. 402), we must presume that Brinkley surrendered a valid certificate of purchase upon the issue of the patent certificate. In order for the appellants to show a prior right, and a consequent superior equity, it was incumbent upon them to establish that their certificate of purchase was issued prior to that which Brinkley surrendered. Holland v. Moon, 39 Ark. 120.” In' that case the court further said that it was not necessary to rely upon these presumptions, but in this case the presumption necessarily arises from evidence of the prior deed from the State that upon its issuance Cross surrendered a certificate prior to that of Fowlkes, or a valid assignment of the same certificate, and shifts the burden upon those attacking it to overcome these presumptions in its favor. It is of no consequence that the State deed is not present, because it is presumed to contain all recitals required by law. 2. The title of the Citizens’ Bank, through which appellants deraign title, is attacked. It was shown that a consent decree was spread upon the records of the Mississippi Chancery Court in a case entitled Jeptha Fowlkes and Sarah W. Fowlkes, executrix of the last will and testament of Jeptha Fowlkes, deceased, and others, against the Citizens’ Bank of New Orleans in Louisiana. It recites the appearance of the respective parties, and consent to the decree and findings from the evidence by the court, the purport of which was to divest the title of the bank acquired under its judgment against Cross and purchase at execution sale thereunder, and invest it in the plaintiffs, the Fowlkes. The said decree “appears upon the record of proceedings of the chancery court to have been rendered after the adjournment of the May term and the beginning of the fall term thereof, and the record - fails to show that an adjourned term of the court was held at which the same might have been rendered. It appears upon the record between the adjourning order of the May term and the opening order of the fall term of said chancery court.” This decree was an absolute nullity, without even as much basis as the decree in Biffle v. Jackson, 71 Ark. 226. In that case a decree was entered in vacation in a space reserved for it, and it was certified by the judge that the case was taken under advisement during the term, and agreed by all parties for the decree to be entered then for a term time order. The court held it a nullity. The appellee seeks to take it out of the rule of Biffle v. Jackson by showing that at the ensuing fall term the following entry appears: “Now on this day comes the complainants, by their solicitor, and in open court and in the presence of, and by the consent of, the counsel for said defendants, amend the final decree heretofore rendered in this cause, so as to make the said decree against the Citizens’ Bank of Louisiana, in place of the Citizens’ Bank of New Orleans in Louisiana, which final decree is of record on page 451 in chancery record.” This entry can do no more than it purported to do, which was to correct a misdescription in the corporate name of the defendant in the suit. With it corrected, the void decree is equally void in its correct description as in its incorrect description. Counsel argue-that the entry is just as binding as if it read: “It is ordered, considered and decreed that the decree heretofore entered on page 451 be and is hereby made and adopted as the decree of this court.” But the entry is far from pretending to such effect. Doubtless, counsel in that case thought that the entry in vacation was valid, and procured the correction of a slight error in description, and nothing more can be imported into the decree than the actual order itself imports into it. 3. It is insisted that, even if this decree was valid, Culbertson and Boynton were innocent purchasers, and the decree passing title, not being recorded in the recorder’s •office within one year, was not effective against them. Kirby’s Dig. § 4478. As the court holds the title of appellant is valid, it is unnecessary to consider this question. An interesting discussion of it may be found by the Court of Appeals in Boynton v. Haggart, 120 Federal Rep. 823. 4. Appellee’s evidence of actual possession is insufficient to create title under seven years’ statute of adverse possession. The payment of taxes, the claim of ownership, and the exercise of fitful and disconnected acts of possession are insufficient to create title by adverse possession. The cutting of timber and fire wood from this place did not evidence the continuity of possession and hostile and notorious holding which are necessary to give title. Ringo v. Woodruff, 43 Ark. 486; Scott v. Mills, 49 Ark. 266; Brown v. Bocquin, 57 Ark. 97; Driver v. Martin, 68 Ark. 551. Opinion delivered July 29, 1905. W. J. Driver and B. B. Brown, for appellants. /. T. Boston and N. B. Ramb, for appellee. 5. Appellee testified that he paid the taxes every year from the time he got his colorable title in 1889 till 1902, and said he would attach all the tax receipts he could find. He attached tax receipts for every year claimed except for the taxes of 1898. That year he fails to produce, and appellants produce a tax receipt for that year. Appellee argues that the payment could be proved by other testimony than the tax receipt, but a general statement of payment for twelve years is insufficient to overcome the evidence of the tax receipt produced by the other party. Part of the receipts produced were for the west half southeast quarter of section 26, instead of the east half southeast quarter, and appellee says- this was a mistake, as he did not own the west half, and. it should have been the east half. This evidence is insufficient to give title under the act of 1899 (Kirby’s Digest, § 5057), as construed in Towson v. Denson, 74 Ark. 302. The judgment is reversed, and the cause remanded with directions to enter a decree in favor of the appellants.