37 Ark. 643 | Ark. | 1881
We cannot presume in favor of the plaintiffs possession, since an issue upon this point was tendered by the answer, and he failed to meet it by proof. It was a jurisdictional fact.
The case of Hamilton v. Cummings, 1 Johnson’s Ch’y., 517, cited, by Zimpleman’s counsel, in support of the proposition that equity will decree the cancellation of a deed void upon its face, is no longer law in the State of New York, having been overruled by Cox v. Clift, 2 Comstock, 118; Scott v. Onderdonk, 14 N. Y., 14; Ward v. Dewey, 16 Id., 529; Crook v. Andrews. 40 N. Y., 547; Guest v. City of Brooklyn, 69 N. Y., 513.
He exhibits two chains of title. The links of the first chain are, a patent deed of the United States to John Dupas, of’Hot Spring county, in Arkansas, issued in 1855 ; a letter of attorney, from Marie Kaufman, of Alsace, in Germany, who claimed to have been the widow of John Baptist Dupas, and the guardian of his minor children, authorizing Victor Lasaque to sell and convey real estate of the said Marie Kaufman and the said infants. This power, executed in 1875, in the German language, was acknowledged before a notary in Strasbourg and appears in the transcript as translated by a notary in Chicago. Under it Lasaque conveyed to Hanna and Chase, they to Howard, and Howard to Zimpleman.
The head of the second chain of title is a collector’s deed to Jacob Kempner, pursuant to a tax sale of March 9th, 1868, for the taxes of the three preceding years. And this followed by sundry mesne conveyances, connecting Zimpleman with this source of title.
Now there is no recital that the sheriff filed in the clerk’s office his assessment list for either of those years, or that the County Court ever corrected or adjusted said assessment, or that the clerk ever made out a tax-book, or attached a warrant thereto, or delivered it to the sheriff. For vices like some of these, the tax-deed was overruled in Haney v. Cole, 28 Ark., 299.
The judgment of the court below is reversed and the bill is dismissed.