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HILL, C. J. The land in controversy is showing that the state had only a naked the east half of the southeast quarter of sec- legal title, and not the real title, when it tion 26 in township 15 north, and range 8 conveyed. Coleman v. Hill, 44 Ark. 452; east, being situated in Mississippi county. Chowning v. Stanfield, 49 Ark. 87, 4 S. W. The appellants deraign title as follows: The 276. The Court of Appeals of this federal swamp-land grant to the state of Arkansas. circuit, in Boynton v. Haggart, 120 Fed. 819, The state deeded it to D. C. Cross Decem- 57 C. C. A. 301, took a different view of the ber 4, 1806. The Citizens' Bank of Louisiana effect of the issuance of the state's deed; obtained a judgment in the federal court holding it was impervious to collateral atagainst D. C. Cross, and this land was sold tack, But following the decisions of this under execution, and purchased by the said court on this subject, the result is the same, bank, to whom it was conveyed by the mar- because the appellee has not proved that shal. The said bank conveyed to W. L. Oul- Fowlkes' purchase was prior to Cross', nor bertson. Culbertson and wife conveyed to negatived a valid transfer of the original C. 0. Boynton. The widow and heirs at law certificate to Cross. The following excerpt of D. C. Cross conveyed to C. O. Boynton. from Dawson v. Parham, 55 Ark. 286, 18 S. The appellants are heirs at law of C. 0. W. 48, reading "Brinkley" into “Cross," and Boynton. The appellants also claim under a "appellant" into “Fowlkes," fits this case tax deed and a decree confirm the tax title. exactly: “The patent to Brinkley was issued The tas title and decree are both attacked, in pursuance of the authority granted by the but the view the court takes of the case ren- swamp-land acts. It is recited that the land ders a discussion of those issues unneces- agent had previously issued his patent cersary. The appellee claims to be the owner tificate to Brinkley, by virtue of the act under a deed from the state executed Decem- of January 20, 1885, as the original purber 7, 1889; the state's title being based on chaser of said land. These recitals show the forfeitures for taxes in the years 1869 and authority upon which the government as1870. The forfeitures for these years are sumed to act in issuing the patent. There shown to be void, and this title is not in- is a presumption, therefore, that they are sisted upon by appellee, other than as giving true. We must take it, then, that Brinkley color of title. The appellee attacks the state the original purchaser, until the condeed to Cross, and the title of the Citizens' trary is proved. The reason for that preBank and of Culbertson, derived therefrom, sumption is made more apparent by a conand sets up title in himself by adverse pos- sideration of the act of January 20, 1855, session, and by seven years' payment of tax- under which the certificate was issued. One es under color of title in virtue of the act of the objects of the act was to afford the of 1899. These issues will be presented and swamp-land agents the opportunity to addecided in the order mentioned:

just conflicting entries. Hempstead v. Un1. The evidence of the conveyance by the derhill, 20 Ark. 337. To that end, provision state to Cross is a transcript of the record was made to the effect that a certificate preof the Commissioner of State Lands, showing viously issued by the swamp-land commisthat the state deeded this land to D. C. sioners should be presented for examination Cross on December 4, 1866; and it is certi- to the officers then known as the 'swampfied by the Commissioner that the transcript land agents of the proper district. If the is a true and correct copy of the record of holder was ascertained to be the original that office, in so far as it relates to this land. purchaser, he received from the agent what This certificate falls within section 3064 of the act terms a 'patent certificate.' The deed Kirby's Digest, making such transcripts affords evidence, as we have seen, of the from the record evidence of the facts there- fact that Brinkley was the holder of such a in stated. It is objected that the original certificate issued in pursuance of this act; patent was not produced or accounted for, and, as the officer who issued that certifiand that this evidence is secondary. The cate is presumed to have acted in conformcourt said, through Chief Justice Cockrill, ity to law in issuing it (Rice v. Harrell, 24 referring to this statute: "The statute makes Ark. 402), we must presume that Brinkley a certified copy of such records of equal dig. surrendered a valid certificate of purchase nity as evidence as the originals." Dawson upon the issue of the patent certificate. In orv. Parham, 55 Ark. 286, 18 S. W. 48. The der for the appellants to show a prior right, state issued a subsequent deed to this land and a consequent superior equity, it was into Jeptha Fowlkes on the 3d of April, 1867. cumbent upon them to establish that their This deed recites that the land agent grant- certificate of purchase was issued prior to ed a patent certificate to said Fowlkes on that which Brinkley surrendered. Holland the 7th of June, 1855, and, it appearing that v. Moon, 39 Ark. 120." In that case the the purchase money was fully paid, the con- court further said that it was not necessary veyance was made by the Auditor. The ap- to rely upon these presumptions, but in this pellee does not deraign title under this deed, case the presumption necessarily arises from but introduces it, seeking to avoid the Cross evidence of the prior deed from the state deed of prior date. It is well settled that a that, upon its issuance, Cross surrendered a state deed may be attacked in equity for certificate prior to that of Fowlkes, or a fraud or mistake or other equitable grounds valid assignment of the same certificate, and shifts the burden upon those attacking it to counsel in that case thought that the entry overcome these presumptions in its favor. in vacation was valid, and procured the corIt is of no consequence that the state deed rection of a slight error in description, and is not present, because it is presumed to con- nothing more can be imparted into the detain all recitals required by law.

cree than the actual order itself imparts intu 2. The title of the Citizens' Bank, through it. whom appellants deraign title, is attacked. 3. It is insisted that, even if this decree It was shown that a consent decree was was valid, Culbertson and Boynton were spread upon the records of the Mississippi | innocent purchasers, and the decree passing chancery court in a case entitled “Jeptha title, not being recorded in the recorder's Fowlkes and Sarah W. Fowlkes, Executrix office within one year, was not effective of the Last Will and Testament of Jeptha

against them. Kirby's Dig. § 4478. As the Fowlkes, Deceased, and others, against the court holds the title of appellant is valid, Citizens' Bank of New Orleans, in Louisi

it is unnecessary to consider this question. ana." It recites the appearance of the re- An interesting discussion of it may be spective parties, and consent to the decree, found, by the Court of Appeals, in Boynton and findings from the evidence by the court,

v. Haggart, 120 Fed. 823, 57 0. C. A. 301. the purport of which was to divest the title

4. Appellee's evidence of actual possesof the bank acquired under its judgment

sion is insufficient to create title under sev. against Cross, and purchase at execution

en years' statute of adverse possession. sale thereunder, and invest it in the plain

The payment of taxes, the claim of ownertiffs, the Fowlkeses. The said decree "ap

ship, and the exercise of fitful and dispears upon the record of proceedings of the

connected acts of possession are insufficient chancery court to have been rendered after

to create title by adverse possession. The the adjournment of the May term and the

cutting of timber and firewood from this beginning of the fall term thereof, and the

place did not evidence the continuity of record fails to show that an adjourned

possession and hostile and notorious holdterm of the court was held, at which the

ing which is necessary to give title. Ringo same might have been rendered. It ap

v. Woodruff, 43 Ark. 486; Scott 5. Mills, pears upon the record between the adjourn

49 Ark. 266, 4 S. W. 908; Brown V. Bocing order of the May term and the opening

quin, 57 Ark. 97, 20 S. W. 813; Driver v. order of the fall term of said chancery

Martin, 68 Ark. 551, 60 S. W. 651. court." This decree was an absolute nulli.

5. Appellee testifies that he paid the taxty-without even as much basis as the

es every year from the time he got his col. decree in Biffle v. Jackson, 71 Ark. 226, 72

orable title, in 1889, till 1902, and said he S. W. 566. In that case a decree was en

would attack all the tax receipts he could tered in vacation in a space reserved for

find. He attaches tax receipts for every it, and it was certified by the judge that

year claimed, except for the taxes of 1898. the case was taken under advisement dur

That year he fails to produce, and appeling the term, and agreed by all parties for

lants produce a tax receipt for that year. the decree to be entered then for a term

Appellee argues that the payment could be time order. The court held it a nullity.

proved by other testimony than the tax The appellee seeks to take it out of the

receipt, but a general statement of payrule of Biffle v. Jackson by showing that at

ment for 12 years is insufficient to overthe ensuing fall term the following entry

come the evidence of the tax receipt proappears: “Now, on this day comes the

duced by the other party. Part of the recomplainants, by their solicitor, and in open

ceipts produced were for the west half of court, and in the presence of and by the

southeast quarter of section 26, instead of consent of the counsel for said defendants,

the east half of the southeast quarter; and amends the final decree heretofore render

appellee says this was a mistake, as he did ed in this cause, so as to make the said

not own the west half, and it should have decree against the Citizens' Bank of Louis

been the east half. This is insufficient to iana, in place of the Citizens' Bank of New

give title under the act of 1899 (section 5057, Orleans, in Louisiana, which final decree

Kirby's Dig.), as construed in Towson v. is of record on page 451 in chaucery record.”

Denson, 86 8. W. 661. This entry can do no more than it pur

The judgment is reversed, and the cause ported to do, which was to correct a misde

remanded, with directions to enter a description in the corporate name of the de

cree in favor of the appellants. fendant in the suit. With it corrected, the void decree is equally void against it in its correct description as in its incorrect description. Counsel argue that the entry is

BOYNTON et al. 1. ASHABRANNER. just as bind as if it read: “It is ordered, considered, and decreed that the de

(Supreme Court of Arkansas. May 27, 1905.) cree heretofore entered on page 451 be, ADVERSE POSSESSION-EXTENT. and is hereby, made and adopted as the de

Where the owner of certain land in controcree of this court.” But the entry is far

versy did not have possession of any part there

of when defendant took possession and held a from pretending to such effect. Doubtless part thereof adversely for a period sufficient to give title by adverse possession, defendant's pos- BATTLE, J. Fritz Bros. brought this acsession extended to the limit of his grant.

tion against R. J. McBride and H. F. Bailey [Ed. Note.—For cases in point, see vol. 1, Cent. Dig. Adverse Possession, 88 547–574.]

on a promissory note which is as follows:

"$237.25. Montrose, Ark. Nov. 22nd, 1900. Appeal from Mississippi Chancery Court, February 1st after date I promise to pay to Chickasawba District; Edward D. Robertson, the order of Fritz Bros. two hundred and Chancellor.

thirty-seven and 26/100 dollars, at Ashley Action by C. D. Boynton and others against | Co. Bank, Arkansas, value received. [Signed} Thomas Ashabranner. From a judgment for R. J. McBride." defendant, plaintiffs appeal. Affirmed.

They alleged in their complaint that the Driver & Harrison, for appellants. W. T.

defendants, being partners doing business Lamb and J. T. Caston, for appellee.

under the firm name and style of R. J. Mc

Bride, executed to them the note sued on WOOD, J. This is a suit by appellants for goods previously purchased of plaintiffs. against appellee to recover and quiet title Bailey answered, and denied that he and to the southwest quarter of section 23, town- McBride were partners, and, as such, exship 15 north, range 8 east, in Mississippi ecuted the note sued on, and that he was county, Ark. The issues in this case are the indebted to plaintiffs in any sum whatever. same as in No. 5,310 (decided this day) 88 S. L. P. Thomas testified that McBride and W. 566, opinion by Chief Justice Hill; and Bailey in June, 1900, at Montrose, Ark., told the facts are the same, except on the ques- him that they were partners doing business tion of limitation. Therefore the opinion in in the name of R. J. McBride, and that he, that case is controlling in this on all issues as agent of plaintiffs, then and there sold except adverse possession. On the question to them, as such partners, 5,000 Marguerite of adverse possession the court found in this cigars, and that they thereafter executed case "that defendant was in the open, noto- the note sued on for the amount due to plainrious, actual, adverse, and continuous posses- tiffs on account thereof, and that the note sion of the aforesaid land for more than two belonged to him. years prior to the filing of this suit." This McBride and Bailey testified that they did finding is not clearly against the weight of not tell Thomas that they were partners, and the evidence. On the contrary, it has the that McBride purchased the cigars for himpreponderance in its favor. There was evi- self, and that Bailey was not indebted to dence tending to prove that 40 acres of the plaintiffs or for the cigars. land were deadened in 1897. A portion of it After the close of the evidence for the dehad been cleared for three years, and 10 fendants, L. P. Thomas testified, over the acres had been fenced for 10 years. Ten objections of the defendants, as follows: "At acres were cleared in 1899, and two crops Parkdale, in this county, after this suit was were made on it before the suit was brought. brought, R. J. McBride said to me he did This suit was begun February 12, 1902; the not blame me a bit for trying to make my owner not having possession of any part money out of Bailey; that he knew I ought when the appellee took possession and held to recover of Bailey in this suit, but he adversely a part. Possession under the law

hoped I would not, because, if Bailey had was extended to the limit of his grant. Crill

to pay me, Bailey would force McBride to v. Hudson, 71 Ark. 390, 74 S. W. 299; Sparks

pay him. Bailey was not present at this v. Farris, 71 Ark. 117, 71 S. W. 255, 945. conversation." The decree is affirmed.

McBride, testifying, denied that he made such a statement.

The undisputed evidence in the case showBAILEY V. FRITZ BROS.

ed that the note belonged to L. P. Thomas. (Supreme Court of Arkansas. May 27, 1905.)

Plaintiffs recovered a judgment against

Bailey for $237.25, and 6 per cent. interest PARTNERSHIP EVIDENCE STATEMENTS OF PARTNER.

thereon from February 1, 1901. The style On an issue of partnership, a statement of

of the action, preceding the judgment, is as one alleged partner, made in the absence of the follows: “Fritz Bros. for Use of L. P. other, after the bringing of suit, that he knew

Thomas v. R. J. McBride and H. F. Bailey." plaintiff should recover of the absent partner, but hoped he would not, because, if the latter

The record does not show that the complaint had to pay plaintiff, he would force the speaker was amended. Bailey appealed. to pay him, was incompetent, as against the ab- The undisputed evidence shows that L. P. sent partner, and prejudicial to him.

Thomas was the owner of the note, and that (Ed. Note.-For cases in point, see vol. 38, Cent. Dig. Partnership, & 70.]

Fritz Bros. were not entitled to recover

thereon. Appeal from Circuit Court, Ashley Coun

The testimony of Thomas as to the conty; Zachariah T. Wood, Judge.

versation with McBride at Parkdale was in. Action by Fritz Bros, against H. F. Bailey

admissible. It was not admitted or admisand another. From a judgment for plaintiffs,

sible for the purpose of impeaching Mcdefendant Bailey appeals. Reversed.

Bride, as no foundation was laid for that Robt. E. Craig, for appellant. Geo. W. purpose. It was not admissible against Norman, for appellees.

Bailey, because the statement made by MC

Bride was made in his absence. It was prejudicial to Bailey, because it tended to show, if it was worth anything, that he was liable for the debt sued for, and was in duty bound to pay it. It is true that McBride denied the conversation, but it was still before the jury, depending for its force and effect upon the relative credibility of two witnesses, when it should not have been before them at all. Bailey was held liable for the debt. How far this incompetent testimony contributed to that result, we cannot tell.

Reverse and remand for a new trial.

James M. Greer, S. S. Semmes, Geo. W. Thomasson, John M. Rose, and Chas. G. Coleman, for appellants, cited, inter alia, Tullos v. Lane, 45 La. Ann. 333, 12 South. 508; Peard V. State, 34 Neb. 372, 51 N. W. 828; Esker v. McCoy, 5 Ohio Dec. 573; Davis v. Moore, 70 Ark. 240, 67 S. W. 311.

Driver & Harrison and Berry & Shafer, for appellees.


RHODES v. DRIVER. (Supreme Court of Arkansas. May 27, 1905.) 1. ELECTIONS-BALLOTS-CUSTODY.

Under Kirby's Dig. § 2838, requiring ballots cast at an election to be preserved by the election commissioners for a certain period, unless they are required as evidence, in which event they must be produced in court from an unbroken package, in which they shall be retained while being preserved, the court becomes the proper custodian of ballots after they have once been produced in court, and the subsequent production of the ballots from the election commissioners is not a production from the proper custodian, such as to authorize presumptions of official regularity on account of the source of their production. 2. SAME-CONTEST.

In an election contest, the ballots of a certain township were produced from the chairman of the election commissioners, although they had previously passed under the control of the court, which had thus, by Kirby's Dig. § 2838, become their proper custodian. This chairman was a strong partisan of one of the contestants, and had, according to the evidence, used improper means to influence the result of the election. No evidence was offered of the identity, in untampered form, of the ballots · produced with those cast, and on a previous hearing no irregularity had been noted in the ballots from the township in question, whereas the ballots produced were fatally defective, in that they did not have the initials of one of the judges thereon, as required by statute. Held, that the ballots could not be deemed the identical original ballots, in untampered form, so as to authorize the returns from the township in question to be thrown out. 3. SAME-EVIDENCE.

Kirby's Dig. § 2861, requiring evidence in election contests to be taken by deposition, is exclusive of other methods, and precludes the hearing of oral testimony of judges of election to sustain the returns.

[Ed. Note.-For cases in point, see vol. 18, Cent. Dig. Elections, § 288.] 4. SAME-ELECTION DISTRICTS.

Where for many years lines recognized by the election judges had been universally acted upon in elections as the true township lines, votes cast in accordance with and reliance on such lines would not be excluded because they were not the true lines, and the votes were actually cast in the wrong township.

Appeal from Circuit Court, Mississippi County; Felix G. Taylor, Judge.

Election contests by J. W. Rhodes against C. S. Driver, and by John A. Lovewell against Sam Bowen. From judgments for contestees, contestants appeal. Reversed.

HILL, C. J. These consolidated cases involve contests over the offices of sheriff and clerk of Mississippi county. This is the second appeal. The first appeal is reported as Rhodes v. Driver, 09 Ark. 501, 64 S. W. 272. The case was reversed on the former appeal for not discrediting and disregarding the returns from Fletcher township, and remanded, with directions to allow the parties litigant to take additional evidence, if desired. Much additional evidence was taken, and the court adjudged that Bowen and Driver were elected sheriff and clerk, respectively, and their opponents appealed.

In summarizing the result of the votes, and the various contentions over the votes in different townships, the appellees make this statement: “With Pecan included and Troy excluded, Driver's vote would be 780, less 83, the vote given him by the returns in Troy; making a total of 697 in the whole county. The foregoing computation gives Lovewell a majority of 2 votes, and Driver a majority of 48, in the whole county." The appellant attacks many of the votes included in this summary, but for the purpose of this opinion this will be taken as a basis from which to discuss the effect of the rulings of the court on some of the questions presented.

1. Should Pecan township be included in the returns? The appellees thus state the situation in regard to the facts and ruling on this township: “Upon the second trial of this cause in the circuit court, while examining the pollbooks and ballots of Pecan township, it was discovered by the contestees (appellees] that none of the ballots cast in this precinct bore the initials of one of the judges, as required by the statute. It was thereupon moved by counsel for contestees that the returns from Pecan township be struck out and disregarded. This motion was afterwards sustained by the court. The returns from Pecan township gave Lovewell 61, Rhodes 65, Bowen 11, and Driver 9." In the former trial these ballots were introduced in evidence, were examined by the circuit judge and passed to the respective attorneys, and their agreement with the pollbooks tested. They were produced at this trial by the chairman of the board of election commissioners, and it was found that, instead of having the initials of one of the judges upon them, they had a mark like this: #. Section 2838, Kirby's Dig., provides that the election commissioners shall preserve for a period of six months the ballots cast at an election, and after that period destroy them, unless they

are notified of a civil suit or criminal prose- to be taken by depositions, was exclusive of cution where they will be required as evi- all other methods of taking testimony in these dence, in which event they must be produced cases, and the terms of the statute on the subin court from an unbroken package, in which ject were mandatory. It is insisted that they shall be contained while being preserv- this decision should not be followed. The ed. The control of the election commission- case was decided after mature consideration, ers orer the ballots ceases when they pro- and two of the judges dissented. If the quesduce them in court. Then they become evi- tion was presented as an original proposition, dence in the cause, and pass under the do- taking the individual views of the judges minion and control of the court. Hence it now constituting the court, it might receive follows that the production of these ballots a different construction. It establishes a rule from the election commissioners after they of practice, and was decided prior to this had been turned into court was not from the trial, and it cannot be said that the rule esproper custodian of them, and no presump- tablished is a bad one, or that it works untions of official regularity can be indulged on justly; and the court declines to overrule account of the source whence produced. This that decision. That necessarily excludes the election officer was admittedly a strong parti- returns from Troy township. san of the appellees in the election, and there 3. Oral testimony was also admitted on the is evidence tending to prove that he used question of township lines, and by it 28 whisky and other improper means to influ

votes in Monroe township and 7 votes in ence voters, and that he attempted to bribe Fletcher township were proved to have been the county judge while the contest was pend- cast by parties living without the townships. ing before him. No sworn evidence from him

The court erred in excluding these votes in is found that these ballots were in the con- Monroe township for another reason. While dition shown on this trial when he received the township lines were proved by the oral them. The appellees seemingly rested entire- testimony, yet it was shown that for many ly upon their production by the election com- years the lines recognized by the election missioner being sufficient to prove their gen- judges in this instance had been universally unineness and integrity. That proof failed acted upon as the true lines of the township. to apply, and, no testimony of their genuine. Under such circumstances, the voters should ness and integrity and unchanged condition not be disfranchised on account of universal being offered, this question rests entirely up- ignorance of the true technical lines. If auon the ballots themselves, as produced by this thorities are needed on this proposition, those election officer. In view of the evidence ad

cited in appellants' brief will be found to duced against him, no presumptions can be sustain it. These conclusions, using the basis indulged in their favor. The fact that they of appellee's calculation above given, elect passed through the hands and under the in- appellant Lovewell by 37 votes over Bowen, spection of the circuit judge and the attorneys and leave Driver a majority of 13 votes over for both sides without discovering this fatal Rhodes. defect is a circumstance against them," and 4. On the former appeal the court said: this is especially so in this case, because the “The contestees have shown that several hunattention of court and counsel was then fo- dred electors of Mississippi county had their cused on defective markings of ballots by poll tax paid by others, and that they were the judges, as that was one of the vital ques- not qualified electors. But they have only tions presented in regard to Fletcher town- shown that about 116 of these voted, and ship at the time these ballots were first being these are all that we could consider in the examined. The court is of opinion that the court. The proof shows that of these Rhodes circuit court did not have legally sufficient received 107, while Driver received 9, and evidence that these were the identical original that Lovewell received 106, while Bowen reballots, in untampered form, to exclude Pecan ceived 8. In the summary of appellees above township, and therefore in the calculation it quoted, 107 votes are excluded from Rhodes, should be included.

and 106 from Lovewell, on this account. Ap2. As to Troy township. The integrity of pellees contend that this is justified by the the returns from this township was success- former evidence and this statement from the fully impeached. It is unnecessary to review opinion. The opinion did not intend to esthe evidence on that subject, because the ap- tablish this as a fact beyond proof to the pellees evidently recognized that fact, and contrary in the new trial, but merely stated on the trial produced the oral testimony of the situation as then developed, and leave the judges of election to sustain the returns. was given for new evidence to be adduced on The appellant objected to the introduction all points. On the second trial of this cause of oral testimony. If the oral testimony was many electors included in said 106 and 107 properly admitted, then there is legally suffi- lists excluded by the testimony then before cient evidence to sustain the finding of the this court took the witness stand and testitrial court in including it in the count for fied that they authorized the payment of appellees; otherwise there is not. In Davis their poll tax by the parties who paid them, v. Moore, 70 Ark. 240, 67 S. W. 311, this court or afterwards ratified the payment, in good held that the section 2861, Kirby's Dig., pro- faith, and repaid the amount. Many were riding for the evidence in election contests proved to be tenants whose taxes were paid

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