Temple v. Bradley Lumber Co.

McCulloch, C. J. Appellant asserts title to a tract of land in Bradley County, Arkansas, containing eighty acres, and instituted this action against appellee in the chancery court of that county to cancel a forfeiture of the land to the State for nonpayment of taxes and the State’s deed thereunder to appellee. The land in controversy was patented by the United States to the State of Arkansas as swamp and overflowed land in the year 1859, and certificate of entry was granted by the State to one Elijah Moseley. On October 3,1867, the land was sold under an execution against Moseley, and purchased by John M. Lyon, the ancestor of appellant’s grantors. After the commencement of this action appellant applied to the State Land Commissioner for a patent upon the original certificate issued to Moseley, and the patent was duly issued to him. The land was forfeited to the State of Arkansas for the nonpayment of taxes for the years 1869 and 1870, and on August 7,1908, the State Land Commissioner conveyed the land to.appellee’s grantor as land forfeited to the State for nonpayment of taxes. The validity of said tax sale is assailed on numerous grounds set forth in the complaint and covered by the proof in the case, and there is no contention on the part of appellee that the sale was valid. Appellee defends on other grounds. In the first place, it is contended that appellant establishes no title to the land prior to the commencement of this action, because patent was not issued until after the commencement of the action. . The original entry by Moseley was sufficient, not only to convey to him the equitable, but also the legal title to the land, which would have supported an action of ejectment. Kirby’s Digest, § 2741. It is also insisted that the State’s title, from whatever source it was obtained, passed under the deed to appellee’s grantor, Burbridge. That deed did not, however, purport to convey any interest of the State except that which it had acquired under the tax forfeiture, and the Commissioner of State Lands was without authority to convey the State’s swamp land title in that manner. St. Louis Refrigerator & Wooden Gutter Co. v. Langley, 66 Ark. 48; Brinneman v. Scholem, 95 Ark. 65. Besides, the State had already parted with its title under the Moseley entry and had nothing to convey. It is next contended that the purchase of John M. Lyon was void because he was the administrator in whose favor the execution was issued and that he had no right to purchase at the sale. Lyon was administrator of the estate of Carter "Wood, and as such obtained a judgment against Moseley. The sale was made under an execution issued at his instance. The sale was undoubtedly voidable at the instance of the heirs or distributees of Carter Wood. Appellee is not in any position to complain on that account. The sale was valid as to all others and conveyed the legal title. There was no element of laches in this case, for the suit was brought a short time after appellee purchased from the State and the land was put back on the tax books. Some of the heirs of John M. Lyon were infants at the time of the conveyances to appellant, and their guardian asked that they be made parties plaintiff in order that their rights might be asserted. This may be done on the remand of the case, for it does not appear that their interests have been properly conveyed to appellant. However, appellant has established legal title to the greater portion of the interests in the tract and is entitled to recover the interest which he acquired. The decree is therefore reversed and the cause remanded with directions, after admitting other interested parties, to enter a decree granting the relief prayed for in the complaint.