135 Ark. 232 | Ark. | 1918
(after stating the facts). The majority of the court is of the opinion that the question of whether or not the State has granted these lands to the defendants is a judicial one, dependent upon the facts, and that the finding of the circuit court in favor of the defendants can be sustained on the doctrine of presumptions of grants as announced in Carter v. Goodson, 114 Ark. 62. The principle upon which this doctrine rests arises from the general infirmity of human nature, the difficulty of preserving muniments of title, and the policy of supporting long and uninterrupted possession of lands. Ricard v. Williams, 7 Wheaton (U. S.), 59.
In Beall v. Lynn, 6 Harris & Johnson (Md.), 236, the court, in the discussion of this doctrine, said: “The grant of incorporeal hereditaments is often presumed from the undisturbed user thereof for a length of time. Grants from the Crown, in England, are presumed, from length of possession, and here even proprietary grants, under certain circumstances, are presumed. In general these presumptions are bottomed upon the existence of certain facts, which can leave but little doubt upon the mind of the truth of the fact which we are called upon to presume. They frequently, too, derive their force and efficacy from that vigilance with which the law guards ancient possessions, which, sooner than they should be disturbed, presumes that they had in contract a rightful commencement. ’ ’
In that case it was held that a patent or grant for land in case of a peaceable and uninterrupted possession of upwards of sixty years, together with the payment of quit-rents or taxes, may be presumed to have been formerly issued, and it was also held that such presumption was one of fact and not of law. See also Mathews v. Burton, 17 Grat. (Va.), 312.
In State v. Wright, 41 N. J. L. 478, it is said that the doctrine of presumption against the Crown, where the adverse claims could have had legal inception is recognized in many cases. This doctrine has been also recognized in cases in which the United States was a party. United States v. Chaves, 159 U. S. 452; Hays v. United States, 175 U. S. 248. In the latter case the court recognized that such presumptions are founded upon the consideration that the facts are such as could not, according to the ordinary course of human affairs, occur unless there was a transmutation of title to, or an admission of an existing adverse title in, the party in possession. Consequently the court held that such presumptions may be rebutted by contrary presumptions; and never fairly arise where all the circumstances are perfectly consistent with the nonexistence of a grant. The court also held that the presumption is subject to the limitation that where title is claimed from a deed which is shown to be void, it will not be presumed that there was an independent grant, or where surrounding circumstances are inconsistent with the theory of the grant. So in that case the court said there was no evidence to justify it in believing that a legal grant could ever have been made. In that case Hays produced oral testimony tending to show a grant of lands by the Governor of New Mexico and an order upon the alcalde to put him in possession; and also gave evidence tending to show that this document was afterwards lost. Hays also produced' a grant by the alcalde in which no reference whatever was made to a prior grant by the government. The court held that the grant of the alcalde was inconsistent upon its face with the alleged grant by the Governor and held that no grant arose under the facts because of the inconsistency which was incompatible with the existence of a grant. In that case there could be no presumption of the grant from the alcalde because he had no power to mate the grant and where a void grant is shown it affords no presumption that another valid grant was made. Here the facts are essentially different. There is no evidence which is conclusively incompatible with the existence of a grant. Neither does the record conclusively show that if a grant was made that it was made by an officer who had no authority to execute it.
In this case it is urged that the possession of the various defendants is not of such a character that, taken in connection with the surrounding circumstances, a presumption could justifiably be founded upon it. Before considering the legal sufficiency of the evidence tc support the finding of the circuit court, it may be well tc consider an objection made to the introduction of evidence.
In Carter v. Tinicum Fishing Company, 77 Penn. 310, the court, speaking through Chief Justice Agnew, said: “Presumptions arising from great lapse of time and nonclaim are admitted sources of evidence, which a court is bound to submit to a jury as the foundation of title by conveyances long since lost or destroyed. ’ ’ The learned Chief Justice also quoted from the opinion of Justice Sergeant in Foulk v. Brown, 2 Watts (Pa.), 209, as follows: “The rule of presumption, when traced to its foundation, is a rule of convenience and policy, the result of a necessary regard to the peace and security of society. No person ought to be permitted to lie by whilst transactions can be fairly investigated and justly determined, until time has involved them in uncertainty and obscurity, and then ask for an inquiry. Justice can not be satisfactorily done when parties and witnesses are dead, vouchers lost or thrown away; and a new generation has appeared on the stage of life, unacquainted with affairs of a past age, and often regardless of them. Papers which onr predecessors have carefully preserved, are often thrown aside, or scattered as useless by their successors. It has been truly said that if families were compelled to preserve them, they would accumulate to a burthensome extent.”
In discussing presumptive evidence, Professor Green-leaf said: “Thus, also, though lapse of time does not of itself, furnish a conclusive legal bar to the title of the sovereign, agreeably to the maxim, “nullum tempus occurrit regi,” yet, if the adverse claim could have had a legal commencement, juries are instructed or advised to presume such commencement, after many years of uninterrupted adverse possession or enjoyment. Accordingly, royal grants have been thus found by the jury, after an indefinitely long continued peaceable enjoyment, accompanied by the usual acts of ownership.” Greenleaf on Evidence (16 ed.), vol. 1, par. 45.
It is, also, shown that the improvements made on said lands by the defendant and those under whom he claims title amount to $5,446 and that they consist of clearing the land for cultivation, fencing the same and erecting a dwelling house and other buildings thereon.
In the Armstrong case the defendant and those under whom he claims title have paid the taxes continuously upon part of said land from the year 1860 to and including the year 1916, and upon a part of it from the year 1858 to and for the year 1916, and that said taxes amount to $561.72. The notations in the land office in regard to this land are also as follows: ‘ ‘ This section was sold to Pollard & Hillis in 1859 (except lot 16); transferred to Taylor & Armstrong. They, Taylor and Armstrong, claim to have a deed to said land from the county court of Craighead County. Payment made in Confederate money, bought for the purpose of making the payment at five cents on the dollar.”
The value of the improvements on this land consisting of clearing the land and fencing the same and buildings erected amounted to' $3,800. In testing the legal sufficiency of the evidence to support the finding of the court, it must be considered in the light most favorable to the defendant, and when so considered it is substantially as stated above. The cases were consolidated and tried before the court sitting as a jury. When all the facts and circumstances just recited are considered together, it was sufficient to raise the presumption of an actual grant of the land from the proper State officers to the defendants.
As stated in Townsend v. The Estate of Downer, supra: “It is the characteristic of circumstantial evidence that while the circumstances taken singly and separately, prove little or nothing, all of them together harmonize and point to a result which the mind must adopt as necessarily following the coincidence of all the facts, all so coinciding that they can not reasonably be accounted for without the result. ’ ’
The deed in the present case was made by the sheriff and collector on December 31,1885. Grady and his predecessor in title have paid all the taxes from 1881 to 1916, inclusive, amounting to $603.14. Grady and his grantor have cleared and put into cultivation thirty-eight acres of said land and the improvements put on the land by them are of the value of $1,520.
It is the contention of the State that the deed should not have been made by the collector but should have been made by the officers whose duty it was to make the deeds under the law as it existed on the date of the sale. We need not decide that question. The record shows that the person from whom Grady purchased the lands bought from the purchaser at the sale, and a preponderance of the evidence shows that the purchase money has been paid. Therefore, it was the duty of the State, through its proper officers, to make the purchaser a deed to the land, and it could not take advantage of its default in this respect to recover the lands.
It follows from the views expressed by a majority of the court that the decree in all three of the eases will be affirmed.