66 Ark. 48 | Ark. | 1898
(after stating the facts.) Both parties to this litigation deraign title from the state—the appellant through an overdue tax deed dated June 5, 1886, and the appellee through a donation deed dated October 4, 1883. The question is, who has the fee simple title?
Section 2, act March 12, 1881, provides for the filing of the complaint in an overdue tax suit, and that the clerk should enter on the record of the court an order to the effect that “all persons having any interest in said lands, or any of them, are required to appear in said court within forty days from that date, then and there to show cause, if any they can, why a lien shall not be declared on said lands for unpaid taxes, and why said lands should not be sold for non-payment thereof.” Section 3 provides for the publication of said order, and that “such publication shall be taken to be notice to all the world,” etc. Section 6 provides for special notice to the state by service of summons on its auditor. Section 7 provides that “in all cases where it shall be made to appear that the lands described in the complaint have been sold or forfeited to the state, the court -shall inquire whether such sale or forfeiture was sufficient in law to vest a title in the state; and if the court finds that no title passed to the state by virtue thereof, the court shall proceed in the same manner as if no such forfeiture had taken place,” etc. Section 15 provides that “whenever a report of sucb commissioner (the commissioner to sell) shall be confirmed, all objections to the sale and the proceedings thereunder shall be adjudged in favor of the validity thereof, and * * * * the court shall order the commissioner making -such sale * * * * to execute a deed to the purchaser, conveying to him the land bought by him in fee simple, and such deed shall be conclusive against the world.”
The state had no title to the land in controversy at the time the commissioner issued his certificate of donation. Under section 7, supra, the decree necessarily determines that. at the time of its donation, the state had no title in the land, but only the right to enforce its lien for taxes. The state had instituted an action to foreclose this lien prior to the issue of the certificate of donation to appellee. It follows that the commissioner of state lands had no authority, prior to the sale of the land under the overdue tax decree, to -issue a certificate of donation, and same conferred upon the donee no rights whatever. Nor did the state, at the time the donation deed was executed, have any title which the land commissioner had power to convey. Her title at that time was inchoate and incom - píete, being subject to right of redemption for two years, as provided in section 11 of the overdue tax act.
But it is contended that, as there was no redemption, and the title became perfect in the state before she sold to appellant’s grantor, such title should inure to the benefit of appellee under his donation deed. Undoubtedly, in the deeds of individuals, that is the law. Section 699 of Sand. & H. Dig. is as follows. “If any person shall convey any real estate by deed, purporting to convey the same in fee simple absolute, or any less estate, and shall not at the time of such conveyance have the legal estate in such lands, but shall afterwards acquire the same, the legal or equitable estate afterwards acquired shall immediately pass to the grantee,” etc. This statute is declaratory of the doctrine of estoppel which would prevail in the case of deeds executed by individuals, were there no such statute. But it does not apply to conveyances made by the state. The state is not expressly named, nor is it included by necessary implication. Martin v. Roesch, 57 Ark. 474-76.
In Casey v. Inloes, 1 Gill, 430, it is said: “The doctrine of estoppel does not apply to a grant from the state, so as to pass an after-acquired title, and such grant passed only the title the state then had.”
The donation deed by the state land commissioner was a quit-claim, and carried only such title as the state had at the time it was executed. At this time the state had no perfect title, and the commissioner could not convey any.
This court held in Woodward v. Campbell, 39 Ark. 580, “that the state will not be estopped by the unauthorized acts of its officers; that all who deal with a public ageut must, at their peril, inquire into his real power to bind his principal.
As to the statute of limitations, it does not appear that the court reached any conclusion of law based upon any findings of fact as to -the statute of limitations. The court simply found, as matter of law, “that appellee’s title was prior and superior to that of appellant,” showing that the court only passed upon the donation deed, and upon the overdue tax deed, and pronounced the former “prior and superior” to the latter. There is nothing in the record, either in the pleadings or proof, that would justify us in passing upon the question of limitations, either of two or seven years.
The court erred in decreeing the donation deed of appellee prior and superior to the overdue tax deed of appellant, and for this error the decree of the Clark chancery court is reversed, and remanded with directions to enter a decree for appellant according to this opinion.