Howard v. Grant

Kirby, J., (after stating the facts). Appellants contend that the land was a new acquisition and not an ancestral estate and to be owners thereof, as half brothers of Jessie Green, the sole surviving heir of James Green, when the deed from the State conveying the land to the heirs of James Green was made. Appellees claim the land under certain deeds and a will and that the lands are an ancestral estate and appellants, not being of the blood of the ancestor from whom the estate came are without right or title thereto. At the time James Green purchased the land in controversy, executed his promissory note for the purchase money and received the certificate of purchase therefor on December 28, 1844, the laws relating to such certificate provided: “The certificate of purchase mentioned in the preceding sections shall have the force and effect of a bond for the conveyance of the lands therein mentioned and shall entitle the purchaser and his heirs and assigns on payment of the purchase money named in the certificate with all interest which may then be due on account of said purchase, to a deed from said commissioner for the land described in said certificate.” Act February 3, 1843, English’s Digest, page 923, § 15. Another statute provided: “If any person die, having purchased lands and tenements in his lifetime and not having completed the payment nor devised such lands and tenements, nor provided for the payment thereof by will, and the completion of such payment would be beneficial to the estate, and not injurious to creditors, the executor or administrator may, by order of the court of probate, complete such payment out of the assets in his hands, and such lands and' tenements shall be disposed of as other real estate.” Rev. Stat., chap. 4, § 161; Kirby’s Digest, § 201. Another ,statute was passed on January 9, 1845 legalizing and confirming all sales of sixteenth section school lands theretofore made and the deed to the heirs of James Green was made under the authority of the following act, approved January 15, 1857: “From and after the passage of this act, if any person or persons, who shall have purchased any portion of the sixteenth section of school lands, from the Common School Commissioner, of any of the counties of this State, and executed note with good security therefor, and received a bond for title from such commissioner, shall die before the payment is fully made, in that event, if the executor, administrator, or guardian, or legal representative, of such deceased person, shall pay, or cause to be paid, the balance, if any, that shall be due to the School Commissioner on said purchase, and upon the certificate of the Common School Commissioner of the proper county, that the whole of the purchase money, with all interest due thereon had been fully paid, the Governor of this State shall forthwith execute a patent deed, as is now required by law, to the heirs at law of such deceased person; which land, thus conveyed to the said heirs, shall stand charged with the amount of money, necessarily advanced to the school fund, in order to procure title, and shall, in other respects, be chargeable with the rights and incumbrances, that would have attached had it descended regularly to the same heirs.” Under this last act the balance of the ^purchase money for these lands was paid by Lovein Howard, then husband of the widow of James Green, and the deed executed to the heirs of James Green, Jessie Green, at the time, being the sole heir. The receipt for the purchase money reads, ‘ ‘ Received of Lovein Howard, as agent of Eliza Howard, legal representative of James Green, deceased,” etc. And the State’s deed to the heirs of James Green recites that it appears that they have become purchasers of the lands and “that full payment has been made by the said heirs of James Green.” Appellants contend that this recital of the deed shows the payment of the purchase money by the heirs, and the estate became a new acquisition in Jessie Green upon the deed from the State within the doctrine announced in Hill v. Heard, 148 S. W. 254, 104 Ark. 23, and descended to them as her half-brothers upon the death of Jessie Green and the termination of the husband’s curtesy interest. Unquestionably, the minor' child or children inherited the father’s equitable title or interest to these lands upon his death and the legal title thereto was afterwards conveyed by the State to the heirs of James Green, Jessie Green being the only one surviving at the date of this conveyance. It is no longer questioned that when the equitable and legal estates in land unite in the same person the equitable title is merged in the legal estate which descends according to the rules of law, the legal title only determining the .course of descent and succession. Hill v. Heard, supra. In that case, the father had purchased lands and gone into possession under a bond for title and died before the payment of the major part of the purchase money which was paid by the mother out of her separate property and the deed afterwards taken conveying the lands to the son and heir and this court held that the two estates came by different rights, the equitable by inheritance and the legal estate by purchase; that the equitable was merged into the' legal, which determined the course of descent or succession, and that the legal estate being acquired by purchase the estate was not ancestral, but a new acquisition and descended upon the death of the owners to the brothers and sisters of the half-blood. In the instant case, the ancestor purchased these lands of the State and took a certificate of purchase, which was in effect a bond for title, or contract for conveyance upon the payment of the purchase money, and died in possession without the payment thereof. The purchase money was afterwards paid, the receipt therefor by the school commissioner showing the person paid it as agent of Eliza Green, “legal representative of James Green, deceased,” and the deed was executed to the heirs of James Green, under authority of the law in such cases above set forth. This same law provides that land thus conveyed shall stand charged with the amount of money necessarily advanced under its provisions in order to procure the title and shall in other respects “be chargeable with the rights and encumbrances that would have attached had it descended regularly to the heirs.” It was the evident purpose of the law to devolve upon the heirs of the person purchasing' school lands under a bond for title therefor and dying before the payment of the purchase money, upon the conveyance thereof to his heirs, after payment of the purchase money for same by his legal representative, the same rights they would have inherited from such person if the purchase money had been paid in his lifétime and the deed conveying the lands made, and in the same way, subject only to the charge for the balance of the purchase money so remaining unpaid at his death and afterwards paid by his legal representatives. The recital of the State’s deed means no more than that the purchase money was received in accordance with the statute, and, as stated in the school commissioner’s receipt, from the legal representative of James Green, deceased. Jessie Green inherited the equitable estate of the father, and the entire purchase money being paid by his legal representative, succeeded to the legal title thereof, on account of being his heir and under the law a.nd the entire estate came to her on the part of the father. Section 2657, Kirby’s Digest; Hill v. Heard, supra. The estate being ancestral, and appellants not being of the blood of the person from whom it came, nor in line of succession on that account, acquired no title whatever upon the death of Jessie Green. Having reached this conclusion, it becomes unnecessary to determine the rights of appellees, since appellants must recover, if at all, upon the strength of their own title, and, having none, necessarily their suit must fail. The decree is affirmed.