Allen v. Phillips

Wood, J. (after stating the facts.) The pleadings and the evidence warrant a finding that appellee was not a trespasser upon the land in controversy, holding same casually and temporarily, but that he was in possession under a bona ñde claim of title. Whether he was in fact the true owner was immaterial for the purposes of this case, for this possession under the circumstances cast upon the appellant the burden of proving title in himself; he could not rely upon the weakness of the title of liis adversary. Cook v. Ziff Colored Masonic Lodge, 80 Ark. 31. The deed of the Commissioner of State Lands upon which appellant relied was prima facie evidence of title in him. But it was no more than this (Cracraft v. Meyer, 76 Ark. 450), and appellee has overcome the prima facie title by showing that the sale of the land in controversy was never confirmed by the court, and therefore no title passed to the State under such sale. Neal v. Andrews, 53 Ark. 445; Neal v. Wideman, 59 Ark. 5. The proof was sufficient to show that there had been no confirmation of the overdue tax sale. All the records of the chancery court were produced that should have shown such confirmation, had it taken place, and they did not show it. This is not a case where the clerk shows that he could not find in his office certain records that might or should have contained the evidence of the confirmation, as in Scott v. Mills, 49 Ark. 266 at page 276. But here t'he records are all in existence,-and all produced, as the proof affirmatively shows, and they do not show that the sale was confirmed. This is evidence, and the only evidence that could be adduced, showing that the sale was-not confirmed. The purpose of the court records is to preserve a memorial and be the evidence of the proceedings had by the court. 2 Chit. Bl. Comm. 264; 4 Words and Phrases Judicially Defined, 3866. We find no error in the instructions of the court, and the verdict was sustained by the evidence. The judgment is right. Affirmed.