Smith v. Hollis, 46 Ark. 17

Smith v. Hollis

46 Ark. 17 | Ark. | 1885

Smith, J.

In this ejectment the plaintiff claimed under a tax deed based upon a sale for non-payment of taxes for the years 1874-5, and the defendant under a homestead entry. The issue was tried, by consent, before the court, without a jury, upon the title papers exhibited with the pleadings and an agreed statement of facts. The findings and judgment were for the defendant. The plaintiff excepted to the findings, opinion, ruling and judgment; but tendered no bill of exceptions, and did not ask for a re-trial. No special declarations of law were moved, and none were given by the court of its own motion.

1.Practice in Supreme Court: Bill of exceptions. A paper is copied into the transcript, marked filed bv the clerk, and purporting to be an agreed statement of the facts submitted to the court; but not subscribed by the parties or their counsel. It is probable that the court accepted the facts so ascertained ; but the paper itself constitutes no part of the record, not being certified to us by a bill of exceptions, nor identified by an order of court as the veritable agreement upon which the cause was tried. Lawson v. Hayden, 13 Ark., 316; Ashley v. Stoddard, 26 ib., 653; Carroll v. Boyd, 30 ib., 527.

2. Same: new^r^u essary.neo Besides, no motion for a new trial was made. We cannot, therefore, inquire whether the special findings of the court are supported by the stipulation as to facts, even if the stipulation had been preserved and came to us in proper form. The necessity for such a motion, in order to have errors of this nature reviewed, exists equally in cases submitted to the court and those submitted to a jury, and as well where there is an agreed statement of facts, as where the facts are proved by witnesses. Gardner v. Miller, 21 Ark., 398; Walker v. Swiggart, ib., 404; King v. Little Rock, 26 ib., 479.

But a motion for a new trial Í3 unnecessary where the errors complained of do not grow out of the evidence or instructions, but appear from the record itself, without. the intervention of a bill of exceptions. Steck v. Maher, 26 Ark, 536; Ward v. Carlton, ib., 662; Worthington v. Welch, 27 ib., 464; Union County v. Smith, 34 ib., 684; Douglass v. Flynn, 43 ib., 398.

3. Same: Judgment inconsistent with, facts found The only question, then, raised by the appeal is: Does the judgment pursue the special findings ; that is, conceding the facts to have been correctly found, does the legal consequence, deduced by the court, follow ?

The court found that the lands in controversy were selected and unconfirmed swamp lands, not subject to entry, and as such were entered at the United States district land office at Champagnolle, Arkansas, in which district the same were situated, by one Michael Yeager, for the price established by law, as follows, to-wit: The northeast quarter of northwest quarter of section two, township fourteen south, of range sixteen west, on the 20th day of May, 1860; and the west half of northeast quarter of said section, on the 11th day of June, 1860; and that said entries were canceled as having been erroneously made, by the commissioner of the general land office of the United States, at Washington, D. C., in the year 1878; and that previously thereto the said lands had been taxed and forfeited and sold to plaintiff as the property of Michael Yeager, for the non-payment of the taxes thereon, under the laws of the state of Arkansas, as shown by exhibit “A” to the complaint. That subsequent to said cancellation plaintiff received his tax deed, said exhibit “ A,” upon which he based his claim herein, and subsequent to said cancellation the administrator of said Michael Yeager, then deceased, received from the United States government, through its proper officer, repayment of the purchase money paid by said Michael Yeager originally, as aforesaid. And that the selection of said lands as swamp and overflowed lands, under act of congress 28th of September, 1850, was duly set aside and canceled by the said commissioner of the general land office, on the 8th of June, 1882, and that said lands thereby and thereafter became subject to disposal according to the laws of the United States, and the rules and regulations of the general land office thereof; and being so subject to disposal, the defendant, W. T. Hollis, at the United States district land office at the town of Camden, in the state of Arkansas, the same being the proper land office for that purpose, did enter all of the aforesaid lands, being all of the lands in controversy, under the homestead laws of the United States, and received the receipt of the receiver of said district land office, showing the same, dated the 29th day of September, 1883, which receipt is filed with the answer herein as exhibit “A”; and by virtue of this said entry the defendant immediately took possession of said land, and was in possession of the same at the date of the commencement of this action.

And the court, upon consideration, was of opinion that the defendant, W. T. Hollis, by virtue of his said homestead entry, is the owner of said land as against all the world, save and except the United States, and is entitled to the possession of the same.

i. Swamp Lands: What are? Decision of I n t e rior Department. The validity of the plaintiff’s title depends on the liability of the lands to taxation in the years 1874-5. And that again depends upon the fact whether at the time of the assessment for taxes, they were the property of the general government, or of an individual. The court declared that the lands were not subject to entry in 1860 ; but this is a conclusion of law, not the statement of a fact. It must be assumed that the greater part of the two tracts was dry land, and therefore that the tracts were not included in the grant made to the state by the swamp land act. For otherwise, neither of the parties, plaintiff or defendant, has the shadow of a title, but the lands belong to the state. In fact the decision of the Interior Department in 1882, rejecting the selection of these lands as swamp and overflowed, is final and conclusive. The character of the lands, whether wet or dry, was a question of fact; and the., act itself devolves upon the secretary of that department, the duty of determining-the question. Johnson v. Towsly, 13 Wall.; 72; French v. Fyan, 93 U. S., 169. And if the greater part of the two subdivisions was dry,, at the date of the grant, the mere selection of them as-swamp lands by the agents of the state, did not have the-effect to withdraw them from sale. It only amounted to a claim that the lands were of the description granted by the act; which claim, upon investigation, proved to be-unfounded. While it would have been eminently proper-for the general land office to withdraw from the market lands so selected and reported,, until such selections were either confirmed or rejected, yet this did not prevent the government from selling its lands. The state by compact entered into on its admission into the union, covenanted not to interfere with the primary disposition of the soil by the United States, nor with the regulations adopted by congress for securing titles to purchasers.

5. Taxes: When lands subject to. It follows that the entries of Michael Yeager were valid. And as soon as he paid the price and- received his certificates, the contracts of purchase became complete, the lands were segregated from the main domain and became-private property, and therefore taxable. It is of no moment that the patent had not issued. The government held the naked legal fee in trust for the purchaser who had the equitable title. Witherspoon v. Duncan, 21 Ark., 240; affirmed on error, 4 Wall., 210; Diver v. Friedheim, 43 Ark., 203; Carroll v. Safford, 3 Howard, 441.

We are not aware that the power of canceling, entries is lodged in the commissioner of the general land office, or in any other officer, except where the land had been previously sold, or reserved from sale,, by the United States. Neither of these causes existed- here, as it appears-, but only a supposed conflict with a prior selection as swamp land.. We may infer that the cancellation was with the consent, or acquiescence of the legal representatives of Yeager.. But this would not destroy the intervening title of the-purchaser at tax sale. The administrator and heirs of Yeager had. themselves no interest in the premises in, 1878, unless it was a right to redeem from the tax sale.

Judgment reversed and cause remanded, with directions-to enter judgment for the plaintiff upon the special findings.