Apel v. Kelsey

47 Ark. 413

• Court: Supreme Court of Arkansas
• Decided: May 15, 1886
• Status: Published

Opinion

Smith, J.

Kelsey sued to recover a tract of two hundred and forty acres. The land had been patented by the general government to the State of Arkansas as swamp land, and had been by the state granted to George C. Watkins and David F. Shall. Watkins had afterwards released to his co-tenant, who died seized. And in 1875, Gordon N. Peay and W. B. Worthen, as administrators of Shall, had, pursuant to authority conferred on them by the probate court of Pulaski county, sold the land privately, for two-thirds of its appraised value, to Theodore B. -Mills. It did not appear that this sale had ever been confirmed. Nevertheless the administrators undertook to convey. And the title so acquired subsequently came, through several intermediate conveyances, to the plaintiff.

Apel disclaimed title to, and possession of, eighty acres of the tract, but for the residue defended himself under a donation deed based on a forfeiture for taxes.

A jury was waived, and the court found that the plaintiff’s chain of title was regular and unexceptionable, and declared the tax deed void. Judgment was entered accordingly; but no writ of possession was to issue until the plaintiff should refund to the defendant $146.31 for taxes and improvements.

The points that will be noticed were properly saved by exceptions filed with the answer to the documentary evidence of the plaintiff’s title ; by objections to the introduction of them as evidence; by declarations of law that were moved for and denied; and by motion for a new trial.

1. Plaintiff his own mie.

We need not canvass the validity or regularity of the tax unless-the plaintiff has shown such aprima facie title as to put the defendant upon proof that he has something in the land superior to a mere naked possession. For it is a canon of the common law that a plaintiff in ejectment must recover, if he does recover, upon the strength of his own title. It sometimes happens that neither of the parties-to the action is proved to be the legal owner of the premises. In that case potior est conditio possidentis et defendentis. Sedg. & Waits Trial of Land Titles, 2 ed., sec. 791; Gaither v. Lawson, 31 Ark., 279; Wheeler v. Ladd, 40 Id., 108; Hill v. Plunkett, 41 Id., 465.

2. Petition to Sell: Where to be filed.

The attack upon plaintiff’s title was mainly directed against the deed of the administrators. It is said the license to sell should have emanated from ’the probate court of Arkansas-county, where the land lay. But the statute settles this. The application must be made to the probate court of that county in which the administration is pending. Mansf. Dig., sec. 4998; Gordon v. Howell, 35 Ark., 381.

S. Notice of application to sell, etc.

Another objection was that notice of the intended application was given through the Gazette, of Little Rock, instead of a newspaper printed in Arkansas county. But the non-publication of any notice at all would merely have been error, to be corrected on appeal, and would not have affected the jurisdiction of the court. Rogers v. Wilson, 13 Ark., 507; Montgomery v. Johnson, 31 Id., 74; Livingston v. Cochran, 33 Id., 297; Grignor’s Lessee v. Aston, 2 Howard, 319; Comstock v. Crawford, 3 Wallace, 396; Mohr v. Maniere, 101 U. S., 417.

The same thing may be said of the objections that the lands should have been viewed and appraised by three disinterested householders of Arkansas county, and that there was no attempt to advertise the sale, as the law requires. The confirmation of a sale, made under an order of court, cures all .such irregularities. They do not avoid the sale, the proceeding being in rem and the court having jurisdiction. Upon a collateral attack, the only inquiry commonly is : Had the •court jurisdiction? Eor, if it had, the purchaser is not bound to look behind the order of the court, or inquire into its mistakes. Borden v. State, 11 Ark., 519; Marr, ex parte, 12 Id., 84; Barrett v. Owen, 13 Id., 177; Sturdy v. Jacoway, 19 Id., 499; Thorn v. Ingram, 25 Id., 52; Fleming v. Johnson, 26 Id., 421; Adams v. Thomas, 44 Id., 267.

The effect of a private sale on the validity of the title we desire to reserve from the category of defects cured by confirmation, for future consideration. It may be that this is such a patent error on the face of the proceedings, as to affect the purchaser, and all claiming under him with notice.

But, so far as appeared, the sale had never been confirmed.

4. Sales must be confirmed.

Now, a judicial sale passes no title until it is confirmed; and confirmation will not be presumed, but must be shown. The court is the vendor, and what takes place before final approval is in the nature of a bid, which may be accepted or rejected. An administrator’s sale to raise a fund to pay debts is a judicial sale, according to all the tests that can be applied. It is ordered by the court; the specific property to be sold is ■designated in the order; the administrator, who conducts the sale, is appointed by, and subject to the control of, the court, .and the court must approve it before it can be treated as final. Freeman on Void Jud. Sales, secs. 1, 41; Penn v. Tolleson, 20 Ark., 652; Sessions v. Peay, 23 Id., 39; Gwynn v. McCauley, 32 Id., 97; Wells v. Rice, 34 Id., 346; Bell v. Green, 38 Id., 78; Walker v. Jessup, 43 Id., 163; Reid v. Hart, 45 Ark., 41.

5. Evidence: Copy of recorded deed.

6. Acicnow ledgment:Curing act.

One of the links in the plaintiff’s chain of title was a conveyance from Anthony Wimmer and M. W. Wimmer and wife to Oliver P. Siddell. A copy of this, certified from the registry of deeds, was exhibited. The defendant excepted to its introduction as evidence without proof of its execution. The statute makes such a copy admissible after the deed has been recorded. But this deed, executed in 1879, had been acknowledged before a justice of the peace in the state of Ohio; and he was not an officer authorized by our law to take and certify the acknowledgment of instruments affecting the title to real estate in Arkansas. And so the deed had been improperly admitted to record. But the defect was cured by the healing act of March 8, 1883. Mansf. Dig., sec. 683. The language of that act is: “All deeds, etc., recorded prior to January 1, 1883, purporting to have been acknowledged before any officer, and which have not heretofore been invalidated by any judicial proceeding, shall be held valid to pass the' estate which such conveyance purports to transfer, although such acknowledgment may have been on any account defective; provided, -that the record of all such instruments shall be as valid as if they had been acknowledged and recorded according to law.” In Green v. Abraham, 43 Ark., 420, we held that the record of a deed of trust, acknowledged before the trustee himself, was made effective by this statute.

The judgment is reversed and cause remanded for further proceedings, with directions to sustain the exception to the deed of Peay and Worthen, as administrators, to Mills, unless the plaintiff will undertake to show by record evidence that the sale therein recited was duly confirmed.