78 Ark. 7 | Ark. | 1906
The answer and proof showed, when the motion to transfer was passed on, that appellant was in possession of the lands in suit. Appellant did not insist on the demurrer nor motion to dismiss in the court below. He answered and went to trial on the merits, and he can not complain here. There is no error presented in the first and second grounds of the motion for new trial.
’True, appellant called for the patents to Craig and Clopton in the answer, but he went to trial without insisting upon a ruling on his motion to produce them; and when the certificate of the Land Commissioner was offered as evidence, appellant did not object to same, nor move afterwards to exclude it on the ground that it was not the best evidence, and not competent as secondary evidence until (the proper foundation had been laid for its introduction by a showing that the patents to Craig and Clopton were lost, destroyed, or otherwise beyond the power of appellees to produce them. It thus appears that appellant in the court below did not avail .himself of the rule applicable in such cases as declared by this court in Driver v. Evans, 47 Ark. 297; Boynton v. Ashabranner, 75 Ark. 415, and Carpenter v. Dressler, 76 Ark. 400.
The appeal by appellees here against the parties named in that bill of exceptions, and in whose favor judgment was rendered in the court below, was never perfected by the filing of the transcript in this court, as the law requires. Appellees prayed a cross-appeal in this case December 9, 1905. But this cross-appeal only brings up questions decided in favor of appellant or any co-appellee against the appellee praying cross-appeal. Section 1225, Kirby’s Digest. And we can only look to the transcript of the record in this court to determine what those questions are. Now, the parties who were joined with Wade as defendants in the court below, and in whose favor judgment was rendered, have not appealed, and Wade’s appeal brings up no question against them. They are not co-appellees with the appellees, Goza and Kimberlin. They are therefore not parties to this record. So we find nothing in this record to impeach the donation deed of Wade. The court erred, therefore, in not granting appellant’s request for instruction number five.
The court properly submitted the questions embraced in these instructions in those numbered two and six which were given. It was a question for the jury, under the evidence, as to whether or not the title to the land in controversy had passed out of Aaron Goza by the proceedings in bankruptcy. If the lands for any reason were not disposed of b)' the referee in bankruptcy, such title as Goza had at the beginning of such proceedings reverted to him upon their termination. “Where a surplus remains in the hands of the assigned or trustee, after the proceeding has terminated, and the debts proved, if any, have all been paid, such surplus reverts to the bankrupt.” In equity he would be the owner of such real estate as might remain, even if a decree were necessary to revest title in him. 16 Am. & Eng. Enc. Law, 699, 700, notes. The court did not err in adding the clause, “or that the lands were not disposed of by the referee in the administration of the bankrupt’s estate,” to appellant’s request for instruction two, and giving it as thus modified.
Likewise, the court properly modified appellant’s request for instruction number six by making it show that the statute of limitations would be reckoned from the date of the deeds, where the parties were then in possession claiming under them, till the beginning of the suit against them for possession. If they had not acquired title under their donation deed by the two years’ statute of'limitations prior to the institution of the suit for possession, they could not acquire it after that time, and while such suits were pending. Of request numbered four by appellant and refused, it suffices to say that it is impossible to forecast what would be a proper instruction upon the question of taxes, interest, improvements and rents. For we can not anticipate what the proof on another trial may develop as to those. But nearly all questions that can arise concerning these matters have already been passed upon by this court in some recent cases. See Bender v. Bean, 52 Ark. 132; McGann v. Smith, 65 Ark. 305; Cowley v. Spradlin, 77 Ark. 190; Cowley v. Thompson, 77 Ark. 186.
For the error of the court in refusing to grant request of appellant for instruction number five, the judgment is reversed, and the cause is remanded for new trial.