55 Ark. 213 | Ark. | 1891
McDiarmid filed an answer claiming some of the lots described in the complaint. The evidence of title which he ■exhibited with his answer was a land commissioner’s deed executed subsequent to that under which the appellant ■claimed, and reciting a forfeiture for the taxes of 1877. The appellant’s argument is that his commissioner’s deed carried 'the title which the commissioner subsequently attempted to •convey to McDiarmid’s grantor, and that McDiarmid took nothing, whether the sale for the taxes of 1877 was good or bad. Conceding that position to be correct, the facts were apparent from the pleadings, and McDiarmid’s answer presented no defence. If a demurrer had been interposed to it, and McDiarmid had set up no other claim to the land after an order sustaining it, it would have been proper for the court to treat him as an idle intruder, and decline to hear any evidence he might offer to adduce. That was the state of case in Black v. Percifield, 1 Ark., 472, where such a ruling was approved. But the appellant’s abstract does not present that state of facts. On the contrary he appears to have gone to trial on the issue of the legality of his own title, and was defeated. It is too late after the cause has- been successfully defended to raise the objection that McDiarmid was incompetent to defend. The only thing the appellant can possibly complain of is that there has been a trial of the merits of his title. If a trial has taken place which the appellant might have prevented, but did not, he is in no position to complain if no error was committed against him on the trial. One cannot be heard to say that the court erred in refusing to confer a title upon him when the record which he has helped to make shows that he is entitled to no relief. The court found, upon the issue selected by the appellant, that he had no title. That finding is sustained by the record. No injury then was done to the appellant’s, rights, and the judgment should be affirmed.
It is so ordered.