Duncan research files of
"Reports of cases at law and equity argued and determined in the Supreme Court of Arkansas; remainder of July 1849 and greater number of January 1850, Vol.V" ("Arkansas Reports" Vol.10), by E.H. English, pgs.252 to 253 (California State Law Library, Sacramento, 12/2003)
BRINKLEY et al. v. DUNCAN As Ad'r.; Supreme Court of Arkansas; 10 Ark. 252; January, 1850, Decided.
Appeal from the Clark Circuit Court. Debt, by Duncan, as administrator of Dickinson, against Brinkley, Maddox, and Stroud, determined in the Clark circuit court, in March, 1849, before the Hon. John Quillin, Judge. The material facts of the case are stated in the opinion of this court.
(opinion) SCOTT, J., delivered the opinion of the court.
At the March term, 1848, of the circuit court for Clark county, leave was granted to the plaintiff below "to file an amended declaration thirty days previous to the first day of the next term, and that the cause be continued." The declaration was not filed within the time, but afterwards; and in this the filing was irregular. Three days after the amended declaration was thus filed, in the September term, 1848, both parties appeared in court, and, by their consent, the cause was continued, and at the same time they placed upon the record an arrangement having a direct reference to this declaration. (Footnote: The agreement referred to by the court was this: "Came the parties by attorney, and by consent, this case is continued; and if defendants, Brinkley et al, demur to said declaration at the next term hereof, defendants waive the right of continuance on that account." At the next term defendants did not demur, but moved to strike out the amended declaration because it was filed too late, but the court overruled the motion, and they excepted.)
This appearance, continuance by consent and agreement, whereby the declaration was recognized, were, in our opinion, a clear waiver on the part of the defendants of the irregularity of filing the declaration out of time. And we hold, therefore, that there was no error in the refusal of the court below at the succeeding term to strike it from the files.
This disposes of the first, second and third assignments; and, as to the fourth, this does not seem to be sustained by the record. From that it appears that the court found that the action "was founded upon a writing obligatory for the sum of twelve hundred and forty-six dollars and one-half cent," and that the recovery adjudged was for "the aforesaid sum of twelve hundred and forty-six and one half cent (1200 001/2) for his debt," which sufficiently shows that the judgment was in fact for dollars and cents, and not for the number of cents alone, as seems to have been supposed. But the second transcript of the judgment filed here clearly settles this question, as well as all questions as to the amount of the judgment rendered: showing, as it does, that the supposed errors, which grounded this assignment, were but clerical mistakes in copying the record.
Finding no error in the record, the judgment is affirmed.
"Reports of cases at law and equity argued and determined in the Supreme Court of Arkansas; remainder of July 1849 and greater number of January 1850, Vol.V" ("Arkansas Reports" Vol.10), by E.H. English, pgs.465 to 466 (California State Law Library, Sacramento, 12/2003)
BARKMAN et Al. v. DUNCAN As Ad.; Supreme Court of Arkansas; 10 Ark. 465; January, 1850, Decided.
Writ of Error to Clark Circuit Court. Debt, by Duncan, as ad., &c. of Dickinson, against Barkman, Barkman and Calloway, determined in the Clark circuit court, in March, 1848, before Hon. George Conway, then one of the circuit judges.
The action was founded on a writing obligatory. Defendants craved oyer, and demurred for variance. The alleged variance appears in the opinion of this court. The court below overruled the demurrer, defendants rested, and final judgment for plaintiff.
(opinion) WALKER, J. The decision of the court below upon the demurrer for variance presents the only question to be determined. The alleged variance is this, that the plaintiff sues as administrator, and, on oyer, produced a note to him as administrator de bonis non.
It is very questionable whether the slightest variance exists in point of fact. The action is brought by "Benjamin Duncan, as administrator of all and singular the goods and chattels, rights and credits unadministered, which were of Benjamin Dickinson, deceased, at the time of his death, plaintiff," &c. The declaration alleges a promise "to pay the plaintiff as administrator as aforesaid." The variance alleged is, that the promise in the note is made to the plaintiff as administrator de bonis non. Now the question is, when the plaintiff described himself as administrator of the unadministered estate, did he not in effect describe himself as administrator de bonis non? An administrator de bonis non is one who administers upon the unadministered effects of the deceased, and when he so described himself, the description was as significant as the technical terms "de bonis non " would have been.
If, however, we could be mistaken in this, the variance, such as it is, could avail the defendants nothing. As a general rule, it may be safely said that when the variance does not change the nature of the writing so as to render the one set out a different instrument in legal contemplation from that which is sought to be introduced, such variance will be disregarded. Where the plaintiff declared upon a bond given to him for or on account of another, and so expressed in the bond, and neglected to set forth that part of the instrument which manifested the use, it was held that the variance was immaterial; even if it had been stated, the court said it would have been mere surplusage.
Where the defendant was described in the declaration as trader and administrator, and the bond, upon which the action was founded when produced on oyer, appeared to have been given to the defendant in his individual capacity, held, on demurrer, that the description of him as administrator might be rejected as surplusage.
There can be no question but that the court acted correctly in overruling the demurrer and rendering judgment for the plaintiff. No attempt has been made by counsel to sustain the errors by reference to authority; nor do we suppose any can be found that would, even remotely, do so. The judgment of the circuit court is, in all things, affirmed.
"Reports of cases at law and equity argued and determined in the Supreme Court of Arkansas; remainder of January 1852, all of January and part of July 1853, Vol.VIII" ("Arkansas Reports" Vol.13), by E.H. English, pgs.293 to 295 (California State Law Library, Sacramento, 12/2003)
ROSS et al., Exrs. v. DAVIS; Supreme Court of Arkansas; 13 Ark. 293; January, 1853, Decided.
Appeal from the Clark Circuit Court. Henry H. Davis filed, for allowance and classification, in the probate court of Clark county, a claim against Ross, Duncan and Flanagin, as executors of Wiley Newburry, deceased.
The executors contested the claim; a trial was had before the probate judge, the claim allowed and classed, exceptions taken by the executors, and an appeal prayed to the circuit court.
The following affidavit for appeal was filed: "Henry H. Davis v. Thomas A. Ross, Benjamin S. Duncan and Harris Flanagin, executors of Wiley Newberry, deceased. I, Harris Flanagin, being duly sworn, do depose and say that the appeal in the above entitled cause is not taken for delay, or for the purpose of vexation, but that the affiant is aggrieved by the decision of the court." Signed by affiant. No bond for costs was filed.
The proceedings in the circuit court, on appeal, are stated in the opinion of this court.
(Opinion) WALKER, J. In this case a motion was made at the September term, 1849, to dismiss the appeal, because (as alleged) the statutory pre-requisites to the granting an appeal by the probate court had not been complied with, which motion the court overruled. At the March term, 1850, the motion to dismiss was renewed, and again overruled; and the court then took jurisdiction of the case, examined the exceptions, decided upon the errors, and set the case for trial de novo upon its merits at the next term. At the March term, 1851, the motion to dismiss was a third time presented, and then sustained by the court and the appeal dismissed.
The grounds for the motion were properly matter in abatement; and, whether presented by plea or motion, the rules governing pleas in abatement with regard to time, &c., are the same. Had the question been presented by plea it would in order have preceded any defense in bar of the action, and would not have been subject to amendment, and when once decided no second plea for the same cause could have been presented even at the same term and before a plea to the action. And if not at the same term, much less should it have been permitted at a succeeding term, and after the court had proceeded to investigate the merits of the appeal.
Independent of any consideration of the merits of the motion, we think the court erred in receiving and entertaining the motion to dismiss the appeal at the time it was dismissed. But upon examination of the grounds upon which the motion was made we think them insufficient. The statute does not require the appellants to give bond for the payment of costs. Biscoe et al. v. Maddin ad., 12 Ark. 765.
And the affidavit required by the statute, although not as definite in its terms as it might have been, is nevertheless not fatally defective. The affidavit was made by one of the appellants, and the statement that "affiant is aggrieved," instead of "affiants are," &c., is the ground of objection. Taking the whole affidavit together, it is evidently a clerical misprision, which does not vary the sense and legal effect of the affidavit.
The Circuit Court, therefore, erred in dismissing the appeal; and, for this error, the judgment of the court must be reversed, with instructions to the Circuit Court to take jurisdiction of the case and proceed to hear and determine the same according to law, &c.
Mr Chief Justice Watkins did not sit in this case.
"Reports of cases at law and equity argued and determined in the Supreme Court of Arkansas; January term 1856 and ..., Vol.XVII" ("Arkansas Reports" Vol.17), by L.E. Barber, pgs.279 to 283 (California State Law Library, Sacramento, 12/2003)
DUNCAN et al. v. CLEMENTS; Supreme Court of Arkansas; 17 Ark. 279; January, 1856, Decided.
Writ of Error to Clark Circuit Court. Hon. Thomas Hubbard, Circuit Judge.
(Opinion) SCOTT, J. This was an action of assumpsit upon a promissory note. The defendants pleaded in an amended plea, "that the said promissory note in writing, was given in consideration of the purchase by the defendant of a tract of land described, which was the property of the said Josephine, then Josephine Buckner: and he avers, that by agreement, a deed was to be made upon the payment of the said promissory note; and he avers that the said Josephine, while single, did not, nor has she and the said Robert, since their marriage, made or offered to make deed for said land to this defendant, and this he is ready to verify," &c.
The plea was not verified by affidavit.
The plaintiffs first moved to strike it out, which the court overruled. They then demurred to it, and assigned for cause:
1st. That it does not set forth and state the terms of the alleged contract of sale, or make profert of such contract, so as to enable the court to pass upon the true construction thereof.
2d. It does not show any bar or defense to the action.
3d. It is uncertain and insufficient in other respects.
The court sustained the demurrer, and the defendants saying nothing further, the court rendered final judgment for the plaintiffs, and the defendants brought error, and assign here, only the ruling of the court upon the demurrer, as error. The single question raised then, is as to the sufficiency of the plea.
The contract set up in the plea, must, of course, be taken to be an obligatory one, and, as it is not averred to be in parol, and is within the statute of frauds, it will be intended against the pleader to have been in writing.
At common law, a contract, not under seal, but within the statute of frauds, was not required to be declared upon, as in writing. Because, although in writing, the action was not considered as based upon a written contract, but upon a mere parol one, of which the writing was but evidence. And it is not necessary in pleading, to state that which is merely matter of evidence. Tucker's Pleading 168, 174. Or, as expressed by Mr. Gould: "The writing required by the statute, is not regarded as an instrument creating the right asserted in the declaration; but as a mere evidence of a parol contract." Gould's Plead., ch. 4, sec. 43, p. 191. "But (proceeds the same author), if any agreement within the statute of frauds, be pleaded in bar of an action, the plea, it is held, must show that the agreement, or some note or memorandum of it, is in writing." Id. sec. 46 Because, as the plea confesses the cause of action alleged in the declaration, it can only avoid it by substantial claim, which is, itself, shown to be such as will support an action, Id. sec. 41.
So, at the common law, a profert is required of no other instrument than deeds. These being the only private writings, which, by the original principles of the common law, are not considered as instruments, on which an action or defense can be directly founded. And, consequently, he who pleads a writing not under seal, is not bound to make profert of it. For, written contracts, not under seal, are regarded by the common law, not as instruments on which actions are founded, but merely as simple contracts, or as evidence of parol contracts.
Our statute, however, has obliterated this distinction as to sealed and unsealed written contracts, by raising the latter to the dignity of the former, and placing them both upon a basis of perfect equality, for all the purposes of maintaining an action, or making a defense upon them, by the several provisions:
1st. Enacting that, "When any declaration, petition, statement or other pleading, shall be founded upon any instrument or note in writing, whether the same be under seal or not, charged to have been executed by the other party, and not alleged therein to be lost or destroyed, such instrument shall be received in evidence, unless the party charged with having executed the same, deny the execution of such writing by plea, supported by the affidavit of the party pleading; which affidavit shall be filed with the plea."
2d. Enacting that, "In all suits, founded upon any instrument or note in writing, under the seal of the person charged therewith, the defendant may, by special plea, impeach, or go into the consideration of such writing in the same manner as if such writing had not been sealed."
And, 3d. By the enactment that, "An action at law may be maintained on any instrument of writing, whether under seal or not, notwithstanding it may be lost or destroyed; and in every such action, no profert of such instrument, shall be required," &c.
The consequence is, that under our law, an action or defense, when setting up an unsealed written contract, is as much directly founded" upon such unsealed contract as it would be upon a sealed contract, if setting that up. And, therefore, with us, a written unsealed contract is to be regarded as an instrument creating the right asserted in the declaration, or set up in the plea, in the same sense that the sealed contract is, and was so considered at the common law. Hence, our practice, long ago established, of requiring profert of unsealed written contracts, when counted upon, or when set up in a plea, precisely as profert would be required of a sealed contract.
Nor is profert, in such cases, an idle ceremony; because, what such a contract means, is a question of law. It is the court, therefore, that determines its construction, and gives it to the jury as a matter of law.
"The construction of all written instruments belongs to the court alone, whose duty it is to construe all such instruments, as soon as the true meaning of the words, in which they are couched, and the surrounding circumstances, if any, have been ascertained as facts by the jury; and it is the duty of the jury to take the construction from the court, either absolutely, if there be no words to be construed as words of art, as phrases used in commerce, and no surrounding circumstances to be ascertained; or, conditionally, when those words or circumstances are necessarily referred to them Unless this were so, there would be no certainty in the law; for a misconstruction by the court is the proper subject, by means of a bill of exceptions, of redress in a court of error, but a misconstruction by the jury cannot be set right at all, effectually.
Such a contract, then, ought to be alleged as in writing, with profert, that the court may have a view of it, pass upon its effect, and determine whether it furnishes the defense claimed for it.
The case of Smith v. Henry, 7 Ark. 207, does not conflict with these views, because, in that case, the plea expressly set up a parol contract, under which, by intendment, the defendant was in the possession of the lots purchased, and the court, proceeding to construe that parol contract, held, that as "the promise to execute the deed was not in writing, that most clearly showed that it was the intention of the parties that the deed should be executed at the same time that the money should be paid."
We think the court erred in refusing to grant the motion to strike out the plea, because, according to the matter therein set up, the consideration of the note sued on, was two-fold. That is to say, one, the sale and purchase of the land, which was executed; and the other, the agreement to make title to it, upon the payment of the note, which was executory; and the plea alleged a failure as to the latter. Hence, quoad the latter, the plea impeached the consideration of the note.
Such a plea, under the provisions of our statute, must be verified by affidavit. Of this error, however, the plaintiffs in error cannot avail themselves, because, not to their injury. But there was no error in sustaining the demurrer.
The Judgment must, therefore, be affirmed.
To the same effect was the case of Branch v. Bolton, decided at the same time.
"Reports of cases at law and equity argued and determined in the Supreme Court of Arkansas; January, May, July and October terms 1860" ("Arkansas Reports") Vol.21, by L.E. Barber, pgs.240 to 249 (California State Law Library, Sacramento, 12/2003)
WITHERSPOON et al. Ex'rs. vs. DUNCAN et al; Supreme Court of Arkansas; 21 Ark. 240; May, 1860, Decided.
Appeal from Clark Circuit Court in Chancery. Hon. Abner A. Stith, Circuit Judge.
WATKINS & GALLAGHER, for the appellants. We concede that, in accordance with the decision of this court in Merrick & Fenno vs. Hutt, 15 Ark. 331, a sale for taxes is not vitiated by the assessment of the property to, or in the name of, one who is not the owner.
And we are bound to concede the law to be, that when land has been sold by the United States, entered and paid for by the purchaser, who receives the usual certificate, or receipt, for the purchase money, and in whose favor the usual patent certificate issues, (see the formula stated in Carroll vs. Safford, 3 How. U.S. 441,) it becomes the property of the purchaser; of which he is entitled to the possession, subject to sale or incumbrance by him, and to sale under execution against him; is devisable or descendable to his heirs; and that it becomes subject to taxation as his property.
Of Carroll vs. Safford, it is to be observed, that it was an ordinary cash entry, and the usual certificates were issued to Carroll, the purchaser, front the Register and Receiver, who acted in the discharge of their duty, and within the scope of their authority. Admitting the full force of the decision, it establishes all that we need contend for in this case, which is:
1st. That although the point decided in Merrick & Fenno vs. Hutt, that it makes no difference in whose name the land is taxed, is correct, as a general principle, and applicable to the case before it, and to all cases where the title to the land had passed out of the general government, it is qualified by the compact between Arkansas and the United States, and does not apply in all its scope, to lands sold by the United States, but not patented, and on which the patent may never issue; because, in such case, it does make a difference -- so, that if the United States continues to be, or some other grantee of hers becomes the owner of the land, by an independent purchase, which is ripened into a patent, the tax sale would be inoperative, and pass no title whatever.
2d. That although the general principle may be, that a sale for taxes is a proceeding in rem, operating upon and passing the whole title, without reference to the particular title or estate of the person to whom, or in whose name it was assessed, (whose title may be bad or doubtful, or who, as it may be, has only an estate for life, or for years) and that it is the land which is taxed, and not the particular estate of the tenant, so that the entire fee, the interest of all the world, passes by a paramount sale for taxes: still, in the case of land sold by the United States officers, and assessed to the purchaser, the interest or right only, whatsoever it may be, of that purchaser from the United States, is sold or passed by the tax sale, which, as the court say, in Carroll vs. Safford, "cannot convey a better title to the land, sold for taxes, than the owner of such land, to whom it stands charged, possessed at the lime the taxes constituted a lien, or when the land was sold."
When this land was assessed and sold for taxes in the year 1842, it was not in fact assessed or taxed to the heirs of Harrell; and we maintain that, by law, it was not then subject to taxation, as their property. The heirs of Harrell never had any clear ascertained right to the land in controversy, until the final decision of the Commissioner of the General Land Office, in 1846, confirming their donation claim, and the issuance of the patent to them for the lands applied for. Until then the whole subject remained under the control of the land department. If rejected, the entry of Denton would have held the land, and he would have received the patent. True, the donation claim was not finally rejected, but there was a continuing power to reject it. The claim did not become consummated until by the exercise of their power the jurisdiction of the land officers over the subject, had become exhausted.
FLANAGIN & GARLAND, for the appellees, contended that lands purchased from the United States are subject to taxation before the issuance of the patent; that when the lands are purchased and paid for they are not the property of the United States, but of the purchaser.
Mr. Chief Justice ENGLISH delivered the opinion of the Court.
The bill in this case was filed in the Clark Circuit Court, by Henry K. Hardy, to the March term, 1856, and he having departed this life before the return term, it was afterwards revived in the names of Witherspoon and others, as his executors.
The object of the bill was to establish and quiet the title of complainant to the S. E. qr. of Sec. 23, and the S. W. qr. of Section 24, T. 8 S. R. 22 W., situate in Clark county, and to cancel a tax title held by Duncan and Flanagin to the same lands.
The cause was heard upon the pleadings, exhibits, and agreement of facts; and the bill was dismissed for want of equity; and the executors of Hardy appealed.
The title of Hardy is derived as follows:
Timothy Harrell being a settler in that portion of the territory of Arkansas ceded to the Cherokee nation by the treaty of the 23d May, 1828, and having removed therefrom, was entitled to a donation of a quantity of land not exceeding two quarter sections, under the provisions of the act of Congress of 24th May, 1828. (commonly known as a Lovely Claim.) Having departed this life before he proved up his claim, his heirs, on the 17th May, 1830, made proof of his actual settlement and subsequent removal, before the Register and Receiver of the Land Office, at Little Rock, in accordance with the provisions of said act, who allowed their claim to a donation of 320 acres of land. Whereupon, they applied to the Register to enter with the donation claim so established, the lands above described, which were then situated in the Little Rock Land District, and subject to entry at that office; and which entry was allowed on the 22d day of May, 1830, by the Register; and a certificate thereof, in due time, transmitted to Washington.
That the Commissioner of the General Land office (as the bill alleges), in conformity with law and the usage of the department, and under instructions from the Secretary of the Treasury, suspended said claim, and for some supposed defect in, or objection to the same, refused to confirm the decision of the district land office, or to sanction such entry, or cause to be issued any patent for said land, until the 5th of February, 1846, when the claim was finally confirmed, and a patent issued for the lands to the heirs of Harrell.
On the 8th of June, 1836, Gabriel W. Denton was permitted, by mistake, to enter the same lands at the land office at Washington, Arkansas, and obtained a certificate of entry. After the confirmation of the entry of Harrell's heirs, and the issuance of the patent to them, the sale to Denton was cancelled, and his purchase money refunded to him by the government.
The title to the land, which the bill seeks to establish and quiet, was obtained by Hardy, through the heirs of Harrell, after the issuance of the patent to them.
Duncan and Flanagin claim title to the lands as follows:
The lands were assessed for taxes, by the sheriff and assessor of Clark County, for the year 1842, in the name of Denton, as a non-resident, etc. Neither he, nor the heirs of Harrell, nor any one else, paying the taxes, etc., charged thereon, the lands were sold by the collector, on the first Monday of November, 1842, for the taxes, and purchased by Duncan and Flanagin, who obtained a certificate of purchase; and on the 1st of January, 1847, the collector executed to them a tax deed for the lands. They afterwards filed a bill in the Circuit Court of Clark county, under the statute, to confirm their title, and at the March term, 1848, after due public notice, obtained a decree of confirmation. It is admitted that the assessment and sale of the land for taxes, as well as the proceedings for confirmation, were regular and formal.
It is insisted by the appellant that the lands were not subject to taxation for the year 1842, and that the tax sale was consequently null and void, and that neither it, nor the decree of confirmation conferred any valid title to the lands upon appellees.
It is conceded that the assessment of the lands in the name of Denton, who was not the true owner, did not vitiate the sale, if the lands were subject to taxation. The point on which the counsel for appellants rests the case, is, that the lands were not subject to taxation until the entry made with the donation claim was confirmed, and the patent granted.
It has been the practice in this State, from an early period after the formation of the State government, to impose a tax upon lands after they were sold by the United States, and before the patents were issued. Thus, it was provided by the Act of 7th November, 1836, (Pamph. Acts, 1836, p. 188,) that "there shall be levied and collected, as a state tax, on all lands lying within this State, claimed by any person, etc., by title derived from the United States, or otherwise, whether a patent may have issued from the President of the United States, or not, one-fourth of one per cent," etc.
Again, it was provided by sec. 1, chap. 128, of the Revised Statutes, which was in force when the lands in question were assessed and sold, that a tax should be levied upon "all lands lying within this State, claimed or owned by any person or corporation, whether such lands may have been patented or not, except such as are exempt from taxation by virtue of the compact between this State and the United States."
The compact exempts from taxation lands which are the property of the United States; and, for a limited period, military bounty lands. 5 Sec.
By Sec. 9, chap. 18, Rev. Stat., it was made the duty of the Auditor annually to procure and furnish to the proper officer in each county a list of such lands as might, from year to year, become taxable, etc.
That it is within the power of the Legislature to impose a tax upon lands purchased at the United States Land Offices, before the patents are issued, does not, we think, admit of a well founded doubt. A law imposing a tax upon such lands is no violation of the clause of the COMPACT which declares "that "the General Assembly of the State shall never interfere with "the primary disposal of the soil within the same by the United "States, nor with any regulations Congress may find necessary "for securing the title in such soil to the bona fide purchasers "thereof." Nor is such law a violation of that clause of the COMPACT which declares "that no tax shall be imposed upon "lands the property of the United States.
When land is purchased at the Land Office, paid for, and the certificate of entry issued to the purchaser, it is no longer the property of the United States, but of the purchaser. He may immediately enter upon and improve it. By our laws, he may bring ejectment for it; it is subject to execution as his property, and, on his death, it descends to his heirs. It is not within the power of the United States to sell it again, if the first sale is in accordance with law.
It is true that the naked legal title remains in the United States, until the patent issues, but the equitable title is in the purchaser, and when the patent is issued it relates back to the entry.
It is true, also, that if land be purchased at the Land Office, which is, by law, reserved from sale, the purchaser gets no title and his entry may be set aside, and, in such case, a person purchasing of him, or under an execution against him, or at a sale for taxes charged upon the land, would fail to get any title. But the fact that an erroneous sale may be occasionally made, is no valid objection to the power of the Legislature to impose a tax upon lands entered at the United States Land Offices, before the patents issue.
But it is insisted that if lands entered with money, are subject to taxation before the patents issue, the law does not apply to an entry made with a donation claim, like the one now before us.
The public lands belonging to the United States, may doubtless be disposed of on such terms, and in such modes, as Congress may think proper to prescribe. They have been sold under acts of Congress, for money, warrants, and donated for military services, and other considerations. The several modes in which the public lands were acquired, were known to the Legislature, and in imposing a tax upon them before the patents were issued, no exemption is made in favor of lands purchased of the government in any particular mode. The language of the law is, that "all lands claimed or owned by any person, etc., whether such lands may have been patented or not," etc., shall be subject to taxation, etc.
By the act of Congress of 24th May, 1828, it was provided that each head of a family, widow, or single man over the age of 21 years, actually settled on that part of the Territory of Arkansas, which, by the first article of the treaty between the United States and the Cherokee Indians, ratified 23d May, 1828, ceased to be a part of said Territory, who shall remove from such settlement, according to the provisions of that treaty, shall be authorised to enter, with the proper Register of the Land Office in Arkansas, a quantity not exceeding two quarter sections of land, on any of the public lands in that Territory, the sale of which is authorised by law, etc., etc.; and upon presenting the certificate of such entry to the Secretary of the Treasury, a patent shall be issued to such settler, or his, her or their heirs, for the lands so entered, as a donation from the United States, and an indemnity for the improvements and losses of such settler, under the aforesaid treaty. The Register and Receiver of the Land Office, to which application may be made to enter such lands, shall be authorised to take the proper testimony of such actual settlement, and subsequent removal, as in case of pre-emptions heretofore granted to actual settlers, etc.
That Timothy Harrell was a settler upon the ceded territory, and removed therefrom; that his heirs proved his claim to a donation before the Register and Receiver of the proper Land office, that the claim was allowed, and that they purchased, with the claim so established, the lands in question, and obtained the patent certificate, in accordance with the provisions of the act of Congress, is not controverted.
Upon such compliance with the provisions of the act, and the issuance of the certificate, their purchase was as complete, and they were as much the owners of the lands as if they had purchased them with money, and obtained the ordinary certificate of entry. They had the right to enter upon the lands so purchased, improve and cultivate them, or otherwise appropriate them to their own use and benefit, and when they were assessed for taxes, it was their duty to see that the taxes were paid.
It is true that the issuance of the patent in this, as in many other cases, was delayed or suspended, but it was finally issued, and related back to the date of the entry with the donation claim. What particular objection was made to the entry, or for what particular cause the issuance of the patent was delayed, does not appear; but it was finally issued, it seems, upon the original proof and certificate. The heirs of Harrell made no new purchase of the lands, but the patent issued to them by virtue of the original entry.
If the lands had been sold under execution against the heirs of Harrell, after they obtained the certificate of entry, and before the patent issued; and after the issuance of the patent to them, the purchaser at execution sale had filed a bill to divest them of the naked legal title held by them as the patentees, it would surely have been no valid defence for them to say that the lands were sold before the patent issued, or that the patent was not issued immediately after the entry, but its issuance was delayed at Washington for the purpose of making enquiry into the fairness of the donation claim with which the lands were purchased, or for the purpose of ascertaining whether the lands were subject to entry, or for any other cause. The delay and investigation can have no effect upon the validity of the title, if the patent finally issues upon the original purchase, and not a new one. It is but the final evidence of the legality of the entry.
If it be assumed that land is not subject to taxation, and that a sale of it for taxes is void, in all cases where the issuance of the patent (as in this case) is suspended or delayed at Washington for investigation, it would be, in effect, to hold that the Auditor should withhold from the assessors the lists of lands entered from year to year until the patents are issued, because he could not know in what cases the issuance of the patents would be so delayed; and then the provision of our law for taxing lands, after they have been sold by the United States, and before the patents are issued, would be, in practical effect, defeated.
Upon the facts of this case, we think the lands in question were subject to taxation, and the decree of the court below must be affirmed.
"Reports of cases at law and equity argued and determined in the Supreme Court of Arkansas; January, May, July and October terms 1860" ("Arkansas Reports") Vol.21, by L.E. Barber, pgs.319 to 323 (California State Law Library, Sacramento, 12/2003)
CRAIG vs. FLANAGIN et al; Supreme Court of Arkansas; 21 Ark. 319; July, 1860, Decided.
Appeal from the Circuit Court of Dallas County in Chancery. Hon. Theodoric F. Sorrells, Circuit Judge.
FOWLER & STILLWELL, for appellant. The act of 10th January, 1857, attempting to cut off eo instanti existing causes of action, is unconstitutional and void. The 2d and 3d sections, attempting to deprive a man of his property without a trial, violate Art. 7, Const. U.S. and secs. 2 and 10 of Art. 2, Const. of Ark.
WATKINS & GALLAGHER, for appellees. The appellant failed to comply with the requisitions of the act of 10th January, 1857, and his bill was properly dismissed.
Mr. Justice FAIRCHILD delivered the opinion of the court.
The lands concerning which the complaint of the bill is preferred, were taxed in Clark county in 1842, against McKay W. Campbell as a non-resident, who was the same person from whom the plaintiff, in 1841, obtained a deed to the same lands.
For default of the payment of the taxes they were offered for sale by the collector of Clark county, in November, 1842, and the defendants Flanagin and Duncan with Benjamin L. Brittin purchased them. On the 4th of March, 1843, Brittin endorsed upon the certificate of purchase taken by the purchasers, that he had transferred his interest in the lands to his two co-purchasers, Flanagin and Duncan, who on the 19th of January, 1847, obtained a collector's deed for the lands from the sheriff of Dallas county, the lands being in the area which, in 1845, was made Dallas county.
At the September term 1847, of the circuit court of Dallas county, the court sitting in chancery, upon the petition of Flanagin and Duncan, and upon evidence and consideration that the proceeding was well brought and sustained under the first five sections of chapter 160 of English's Digest, made a decree of confirmation as provided for in the sixth section of the same chapter.
To avoid the effect of this decree the appellant, upon the 29th of January, 1857, filed his bill on the chancery side of the Dallas circuit court, alleging six specific errors to be apparent upon the face of the decree, for which it should be reversed, and he be relieved against such errors, as upon a bill of review, which the bill so far was, according to his denomination thereof.
In further allegations, the bill by way of an original bill, and of an original bill in the nature of a bill of review, made numerous specifications of alleged fraudulent conduct of Flanagin and Duncan in obtaining their deed to the lands, and in procuring the decree of confirmation, as injurious to the plaintiff, and practicing imposition upon the court that pronounced the decree.
But with these allegations of the bill, in either or in any of its aspects, this court has no concern; inasmuch as it now is only to be decided whether the court below rightly dismissed the bill, upon the motion of the defendants, for not being verified by affidavit, for being filed without previous leave of the court, and because the plaintiff did not, before the issuance of the writ in this case, file in the office of the clerk of the circuit court of Dallas county an affidavit that he had tendered to the defendants the taxes and costs first paid on account of the lands, with one hundred per cent. interest thereon, and interest at twenty-five per cent. per annum upon costs and taxes afterwards paid upon the lands, and the full value of all improvements made upon the lands, and that the same had been refused.
Waiving the comparatively unimportant points of practice raised in the motion, as to there being no leave to file the bill, and no affidavit to verify it, the other and main objection to this suit, and that upon which the appellant's counsel suppose the court below to have dismissed the bill, must be considered.
The need for an affidavit by the plaintiff, concerning the tender for taxes, costs, interest, and improvements, arises from the 2nd section of an act, approved 10th January, 1857, entitled "An act to quiet land titles in this state," and the action of the court in dismissing the bill is sustained and required by the 3rd section of the act.
This seems to be conceded by the counsel of Craig, and hence his argument for the overthrow of the statute, as an unjust and unconstitutional enactment, loading the right for a recovery of the appellant's lands, with conditions that are burdensome and might be impossible to perform, and depriving him of his property in another way than by the judgment of his peers, or the law of the land.
Relief from an impolitic or unfair law is not within the scope of remedial justice as administered by courts, yet the views of this court upon the policy of our laws, subjecting property to taxation and enforcing its sale upon default of payment of taxes with which it is charged, are sufficiently indicated in numerous cases, of which Merrick vs. Hutt, 15 Ark. 331, may be mentioned as fully in point, and well sustained by argument, by previous authority, and by the subsequent adjudications of this court.
The state had the right to tax the lands in controversy did tax them in 1842, rightly enforced the payment of the tax after the neglect of Craig to make the payment, by selling them to the defendants and to Brittin. The lands were sold, not the interest of McKay W. Campbell,the former owner, and the person against whom they were taxed.
By the sale of the lands the title to them was taken away from Craig, was vested in the purchasers, and could have been so vested without the possibility of redemption, without any ground for an action for their recovery; but if the law allows a defaulting owner of taxable property to redeem it, or to sue for it, but attaches conditions to the right of redemption, or of suit, the right is not the less a privilege to the defaulter. That privilege may be more or less valuable, according to the burden of the conditions; and if a non-resident defaulting owner of lands be unable or unwilling to perform the acts requisite to redeem, or to sue, he is only in the unfortunate state of a resident tax payer whose lands have been sold for taxes because he could not, or did not pay them; and because they could not be made out of personal property.
The law against which the appellant's counsel so earnestly argues, instead of being a deprivation of the rights of Craig, is an acknowledgement of them, recognizing in him a right which the state has not extended to the resident tax payers of a comity, whose lands, when once sold for taxes, may not be recovered by redemption, or by suit, though with an affidavit of tender of payment for taxes, costs, interest and improvements.
If there were any unconstitutionality in the proceedings by which the appellant's lands became and are the lands of the tax sale buyers, it must be in such as are condemnatory, that authorize them to be sold, not in the act that concedes a right to sue for them, though restricted by conditions which the appellant may think to be burdensome.
If the act in question, which is also found in Gould's Digest, title Limitations, sections 6 to 9, was, as the New Hampshire statute of improvements was claimed, though not decided to be, in Society, &c. vs. Wheeler, 22 F. Cas. 756, 2 Gall. 105, introductory of a new rule which entirely destroyed an owner's right to sue for his own lands except upon paying for improvements made without his consent, and without default upon his part; or if it was in violation of a compact entered into by the state, as the Kentucky occupant law was held to be, in Biddle vs. Green, 21 U.S. 1, 8 Wheat. 1, 5 L. Ed. 547: or if it subjected one man's land to the private use and convenience of another, as was the case in Taylor vs. Porter, 4 Hill 140: or if it transferred Craig's property to Flanagin and Duncan without the judgment of Craig's peers, or without warrant of the law of the land, as contended for by the counsel of the appellant, this court might not differ from the counsel in its estimation of the law.
But the compulsory transfer of the appellant's lands to the appellees, has not been made without or against the law of the land, but under law well settled to be both constitutional and founded in wise and necessary policy; it is not in violation of any compact of the state, for she has never engaged that the lands should be free from taxation, or exempt from the usual and legal consequences of non-payment of the taxes charged upon the lands, nor is the statute in question different from the former law, and contained in Gould's Digest 953 sec. 143, upon the matter of paying for improvements; and we hold that the law in question is not unconstitutional, and being well applied to this case in the court below, its decree must be affirmed.
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