80 Ark. 31 | Ark. | 1906
(after stating the facts.) (1) The court did not err in overruling the demurrer to the answer. The appellee being in possession, the presumption is he was the owner or a tenant of the owner. It will not be presumed that his possession was wrongful. Possession is evidence of title, at least to the extent of requiring one who would oust it to show title in himself. The requirement of the law is not met simply by showing prima facie title. The old rule in ejectment that the plaintiff must rely upon the strength of his own title applies here. The burden is upon the plaintiff to show title, not merely prima facie title.
The answer presents a good defense to the action of ejectment. The authorities cited by appellant do not apply, for in resisting the assault made upon its possession appellee is not attacking the prima facie title of appellant. The case is different, however, when appellee by cross-complaint asks the cancellation of appellant’s prima, facie title. This is an affirmative attack upon appellant’s prima facie title. The commissioner’s deed is prima facie evidence of title, and, in order to have it canceled and removed as a cloud, the burden is upon the appellee to show that the deed conveyed no title. Scott v. Mills, 49 Ark. 266. The argument and authorities of appellant to show that appellee’s answer does not state a good defense to the action of ejectment are in point to show that appellee is not entitled to relief on his cross-complaint, and that the court erred in not sustaining the demurrer as to this, and in transferring the case to the chancery court. Possession is not title, and possession alone, without any other evidence of title, is not sufficient to enable one to maintain a suit to remove a cloud and quiet title. By mere possession one does not show that he has any title to quiet. One must have a title before he can maintain suit to have his title quieted by canceling a deed that is a cloud upon his title.
2. The chancellor found “that the record fails to show that R. D. Chotard. the clerk, made a proper certificate and attached it at the foot of the delinquent list filed by the sheriff, showing that said list had been published as required by law, o.r that said certificate was made and attached thereto before the day of sale.”
The law requires the clerk of the county court to record the delinquent list filed with him by the collector in a book kept by him for that purpose, and that he shall certify at the foot of said record, stating in what newspaper said list was published, and the date of publication and for what length of time the same was published before the second Monday in June then next ensuing. The statute provides that this “record so certified shall be evidence of the facts -in said list and certificate contained.” Sec. 7086, Kirby’s Digest. This court has often held that this certificate must be recorded before the day of sale, and that the record, when so made up, is the only evidence of what it should contain. Hunt v. Gardner, 74 Ark. 583; Logan v. Eastern Land Co., 68 Ark. 248; Taylor v. State, 65 Ark. 595; Cooper v. Freeman Lumber Co., 61 Ark. 36; Martin v. Allard, 55 Ark. 218. See also Martin v. Barbour, 140 U. S. 634. What purports to be the certificate of the clerk, made in compliance with the statute, is as follows : “Given to the Chicot Life on the 17th day of May for publication. R. D. Chotard, Clerk. Published in Chicot County-Life for two issues, towit: 21st day of May and 28th day of May, 1901.
[Seal] . “R. D. Chotard, Clerk.”
A certificate is “a writing giving assurance that a thing has or has not been done, * * * that a fact exists or does not exist. To certify is to testify to in writing; to make known or establish as a fact. The word is not essential to a certificate.” Anderson's Law Dictionary “Certificate.” A majority of the court is of the opinion that the statement supra, recorded at the foot of the delinquent list and signed by the clerk, meets the requirements of the law. Secs. 7085 and 7086 of Kirby’s Digest. It was given in the “Chicot Life” on the 17th day of May, and was “published” in the “Chicot Life” for two issues towit: 21st day of May, and 28th day of May, 1901. The “Chicot Life” -indicates the name of the newspaper, and “Chicot” shows with reasonable certainty that it was a county publication. The word “published” shows that it was printed, and the “two issues” “May 21 and May 28, 1901,” indicates that it was a “weekly newspaper,” and published weekly for two weeks showing the length of time it was published before the second Monday in June. Thus every requirement of the statute is met and shown by the certificate. True, the certificate is not dated, showing-that it was entered of record before the day of sale. But, in the absence of a date, and in the absence of proof to the contrary, it follows that it was entered of record before and not after the day of the sale, for the law requires it to be so entered, and the presumption is that the clerk did his duty. This is not a case of substituting other proof for that required by the record, and different proof. -It is a case where, in the absence of any proof, the law by a well-established presumption supplies it.
(Note. The writer does not concur in the view that the certificate can be aided by the presumption as to date, and thinks it fatally defective because it does not bear date showing that it was entered of record before the day of sale.)
The court erred therefore in finding that the clerk did not make a proper certificate.
For the errors indicated the decree is reversed, and the cause is remanded with directions to transfer to the law court, and with leave to amend pleadings if so desired, and for further proceedings not inconsistent with this opinion.
