Wallace v. Glessner

McCULLOCH, C. J. Appellant instituted separate actions against appellees Gflessner and Biggs, respectively, for the possession of certain lands in Logan County. The two actions were transferred to equity, and by consent consolidated, and tried together, and a final decree was rendered in favor of each of said appellees. Appellant claimed each of the tract of land in controversy under a deed from the Commissioner of State Lands, the State’s title being based on a sale pursuant to a decree of the chancery court of Logan County for overdue taxes under the act of March 12, 1881. See Acts of 1881, p. 63. Appellees answered, setting forth numerous grounds for an attack upon the validity of the overdue taxes decree, and among other things alleged that they held the lands under patents from the United States, and that the lands were owned by the government and were, therefore, not subject to taxation at the time of the original void assessment or at the time of the institution of the suit in which the sale was decreed. (1) The decree recites that the cause was heard upon “the record evidence, oral evidence, and patent deeds, papers, and other documentary evidences in said case.” It is conceded that the patents do not show the dates when the titles passed from the government to the entrymen under the original entries, but it is contended that the mere reference in the patents to the original certificates by numbers makes them parts of the patents so as to constitute parts of the record on which the case was tried below, and that we ought to compel the production of the certificates and treat them as parts of the record. It is, however, a mistake to assume that a mere reference to the certificates brought them into the record without having been read to the court and filed, or brought in by bill of exceptions. (2) There is, therefore, nothing in the record to prove that the title passed out of the government at a time earlier than the date of the respective patents in the case, which was after the institution of the overdue tax suit. The chancery court found that the overdue tax decree was void for want of jurisdiction of the court which rendered it, and that is correct if the lands belonged to the United States Government. The decree in the overdue tax suit is not open to collateral attack merely for correction of errors, but if the court was without jurisdiction because of the fact that the lands in question belonged to the government, the decree was void, and, in that respect, not open to collateral attack. Burcham v. Terry, 55 Ark. 398. Upon the record presented the decree of the court is correct and the same is, therefore, affirmed.