HILL, C. J. The land in controversy is the east half of the southeast quarter of section 26 in township 15 north, and range 8 east, being situated in Mississippi county. The appellants deraign title as follows: The swamp-land grant to the state of Arkansas. The state deeded it to D. C. Cross December 4, 1866. The Citizens' Bank of Louisiana obtained a judgment in the federal court against D. C. Cross, and this land was sold under execution, and purchased by the said bank, to whom it was conveyed by the marshal. The said bank conveyed to W. L. Culbertson. Culbertson and wife conveyed to C. O. Boynton. The widow and heirs at law of D. C. Cross conveyed to C. O. Boynton. The appellants are heirs at law of C. o. Boynton. The appellants also claim under a tax deed and a decree confirming the tax title. The tax title and decree are both attacked, but the view the court takes of the case renders a discussion of those issues unnecessary. The appellee claims to be the owner under a deed from the state executed December 7, 1889; the state's title being based on forfeitures for taxes in the years 1869 and 1870. The forfeitures for these years are shown to be void, and this title is not insisted upon by appellee, other than as giving color of title. The appellee attacks the state deed to Cross, and the title of the Citizens' Bank and of Culbertson, derived therefrom, and sets up title in himself by adverse possession, and by seven years' payment of taxes under color of title in virtue of the act of 1899. These issues will be presented and decided in the order mentioned:

1. The evidence of the conveyance by the state to Cross is a transcript of the record of the Commissioner of State Lands, showing that the state deeded this land to D. C. Cross on December 4, 1866; and it is certified by the Commissioner that the transcript is a true and correct copy of the record of that office, in so far as it relates to this land. This certificate falls within section 3064 of Kirby's Digest, making such transcripts from the record evidence of the facts therein stated. It is objected that the original patent was not produced or accounted for, and that this evidence is secondary. The court said, through Chief Justice Cockrill, referring to this statute: "The statute makes a certified copy of such records of equal dignity as evidence as the originals." Dawson v. Parham, 55 Ark. 286, 18 S. W. 48. The state issued a subsequent deed to this land to Jeptha Fowlkes on the 3d of April, 1867. This deed recites that the land agent granted a patent certificate to said Fowlkes on the 7th of June, 1855, and, it appearing that the purchase money was fully paid, the conveyance was made by the Auditor. The appellee does not deraign title under this deed, but introduces it, seeking to avoid the Cross deed of prior date. It is well settled that a state deed may be attacked in equity for fraud or mistake or other equitable grounds

showing that the state had only a naked legal title, and not the real title, when it conveyed. Coleman v. Hill, 44 Ark. 452; Chowning v. Stanfield, 49 Ark. 87, 4 S. W. 276. The Court of Appeals of this federal circuit, in Boynton v. Haggart, 120 Fed. 819, 57 C. C. A. 301, took a different view of the effect of the issuance of the state's deed; holding it was impervious to collateral attack. But following the decisions of this court on this subject, the result is the same, because the appellee has not proved that Fowlkes' purchase was prior to Cross', nor negatived a valid transfer of the original certificate to Cross, The following excerpt from Dawson v. Parham, 55 Ark. 286, 18 S. W. 48, reading "Brinkley" into "Cross," and "appellant" into "Fowlkes," fits this case exactly: "The patent to Brinkley was issued in pursuance of the authority granted by the swamp-land acts. It is recited that the land agent had previously issued his patent certificate to Brinkley, by virtue of the act of January 20, 1885, as the original purchaser of said land. These recitals show the authority upon which the government assumed to act in issuing the patent. There is a presumption, therefore, that they are true. We must take it, then, that Brinkley was the original purchaser, until the contrary is proved. The reason for that presumption is made more apparent by a consideration of the act of January 20, 1855. under which the certificate was issued. One of the objects of the act was to afford the swamp-land agents the opportunity to adjust conflicting entries. Hempstead v. Underhill, 20 Ark. 337. To that end, provision was made to the effect that a certificate previously issued by the swamp-land commissioners should be presented for examination to the officers then known as the 'swampland agents' of the proper district. If the holder was ascertained to be the original purchaser, he received from the agent what the act terms a 'patent certificate.' The deed affords evidence, as we have seen, of the fact that Brinkley was the holder of such a certificate issued in pursuance of this act; and, as the officer who issued that certificate is presumed to have acted in conformity to law in issuing it (Rice v. Harrell, 24 Ark. 402), we must presume that Brinkley surrendered a valid certificate of purchase upon the issue of the patent certificate. In order for the appellants to show a prior right, and a consequent superior equity, it was incumbent upon them to establish that their certificate of purchase was issued prior to that which Brinkley surrendered. Holland v. Moon, 39 Ark. 120." In that case the court further said that it was not necessary to rely upon these presumptions, but in this case the presumption necessarily arises from evidence of the prior deed from the state that, upon its issuance, Cross surrendered a certificate prior to that of Fowlkes, or a valid assignment of the same certificate, and

shifts the burden upon those attacking it to overcome these presumptions in its favor. It is of no consequence that the state deed is not present, because it is presumed to contain all recitals required by law.

2. The title of the Citizens' Bank, through whom appellants deraign title, is attacked. It was shown that a consent decree was spread upon the records of the Mississippi chancery court in a case entitled "Jeptha Fowlkes and Sarah W. Fowlkes, Executrix of the Last Will and Testament of Jeptha Fowlkes, Deceased, and others, against the Citizens' Bank of New Orleans, in Louisiana."

It recites the appearance of the respective parties, and consent to the decree, and findings from the evidence by the court, the purport of which was to divest the title of the bank acquired under its judgment against Cross, and purchase at execution sale thereunder, and invest it in the plaintiffs, the Fowlkeses. The said decree "appears upon the record of proceedings of the chancery court to have been rendered after the adjournment of the May term and the beginning of the fall term thereof, and the record fails to show that an adjourned term of the court was held, at which the same might have been rendered. It appears upon the record between the adjourning order of the May term and the opening order of the fall term of said chancery court." This decree was an absolute nullity-without even as much basis as the decree in Biffle v. Jackson, 71 Ark. 226, 72 S. W. 566. In that case a decree was entered in vacation in a space reserved for it, and it was certified by the judge that the case was taken under advisement during the term, and agreed by all parties for the decree to be entered then for a termtime order. The court held it a nullity. The appellee seeks to take it out of the rule of Biffle v. Jackson by showing that at the ensuing fall term the following entry appears: "Now, on this day comes the complainants, by their solicitor, and in open court, and in the presence of and by the consent of the counsel for said defendants, amends the final decree heretofore rendered in this cause, so as to make the said decree against the Citizens' Bank of Louisiana, in place of the Citizens' Bank of New Orleans, in Louisiana, which final decree is of record on page 451 in chancery record." This entry can do no more than it purported to do, which was to correct a misdescription in the corporate name of the defendant 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 just as binding as if it read: "It is ordered, considered, and decreed that the decree heretofore entered on page 451 be, and is hereby, made and adopted as the decree of this court." But the entry is far from pretending to such effect. Doubtless

counsel in that case thought that the entry in vacation was valid, and procured the correction of a slight error in description, and nothing more can be imparted into the decree than the actual order itself imparts into it.

3. It is insisted that, even if this decree was valid, Culbertson and Boynton were innocent purchasers, and the decree passing title, not being recorded in the recorder's office within one year, was not effective against them. Kirby's Dig. § 4478. As the court holds the title of appellant is valid, it is unnecessary to consider this question. An interesting discussion of it may be found, by the Court of Appeals, in Boynton v. Haggart, 120 Fed. 823, 57 C. C. A. 301.

4. Appellee's evidence of actual possession is insufficient to create title under seven years' statute of adverse possession. The payment of taxes, the claim of ownership, and the exercise of fitful and disconnected acts of possession are insufficient to create title by adverse possession. The cutting of timber and firewood from this place did not evidence the continuity of possession and hostile and notorious holding which is necessary to give title. Ringo v. Woodruff, 43 Ark. 486; Scott v. Mills, 49 Ark. 266, 4 S. W. 908; Brown v. Bocquin, 57 Ark. 97, 20 S. W. 813; Driver v. Martin, 68 Ark. 551, 60 S. W. 651.

5. Appellee testifies that he paid the taxes every year from the time he got his colorable title, in 1889, till 1902, and said he would attack all the tax receipts he could find. He attaches tax receipts for every year claimed, except for the taxes of 1898. That year he fails to produce, and appellants produce a tax receipt for that year. Appellee argues that the payment could be proved by other testimony than the tax receipt, but a general statement of payment for 12 years is insufficient to overcome the evidence of the tax receipt produced by the other party. Part of the receipts produced were for the west half of southeast quarter of section 26, instead of the east half of the southeast quarter; and appellee says this was a mistake, as he did not own the west half, and it should have been the east half. This is insufficient to give title under the act of 1899 (section 5057, Kirby's Dig.), as construed in Towson v. Denson, 86 S. W. 661.

The judgment is reversed, and the cause remanded, with directions to enter a decree in favor of the appellants.

BOYNTON et al. v. ASHABRANNER. (Supreme Court of Arkansas. May 27, 1905.) ADVERSE POSSESSION-EXTENT.

Where the owner of certain land in controversy did not have possession of any part thereof when defendant took possession and held a part thereof adversely for a period sufficient to

give title by adverse possession, defendant's possession extended to the limit of his grant.

[Ed. Note.-For cases in point, see vol. 1, Cent. Dig. Adverse Possession, 88 547-574.]

Appeal from Mississippi Chancery Court, Chickasawba District; Edward D. Robertson, Chancellor.

Action by C. D. Boynton and others against Thomas Ashabranner. From a judgment for defendant, plaintiffs appeal. Affirmed.

Driver & Harrison, for appellants. W. T. Lamb and J. T. Caston, for appellee.

WOOD, J. This is a suit by appellants against appellee to recover and quiet title to the southwest quarter of section 25, township 15 north, range 8 east, in Mississippi county, Ark. The issues in this case are the same as in No. 5,310 (decided this day) 88 S. W. 566, opinion by Chief Justice Hill; and the facts are the same, except on the question of limitation. Therefore the opinion in that case is controlling in this on all issues except adverse possession. On the question of adverse possession the court found in this case "that defendant was in the open, notorious, actual, adverse, and continuous possession of the aforesaid land for more than two years prior to the filing of this suit." This finding is not clearly against the weight of the evidence. On the contrary, it has the preponderance in its favor. There was evidence tending to prove that 40 acres of the land were deadened in 1897. A portion of it had been cleared for three years, and 10 acres had been fenced for 10 years. Ten acres were cleared in 1899, and two crops were made on it before the suit was brought. This suit was begun February 12, 1902; the owner not having possession of any part when the appellee took possession and held adversely a part. Possession under the law was extended to the limit of his grant. Crill v. Hudson, 71 Ark. 390, 74 S. W. 299; Sparks v. Farris, 71 Ark. 117, 71 S. W. 255, 945. The decree is affirmed.

On an issue of partnership, a statement of one alleged partner, made in the absence of the other, after the bringing of suit, that he knew plaintiff should recover of the absent partner, but hoped he would not, because, if the latter had to pay plaintiff, he would force the speaker to pay him, was incompetent, as against the absent partner, and prejudicial to him.

[Ed. Note.-For cases in point, see vol. 38, Cent. Dig. Partnership, § 70.]

Appeal from Circuit Court, Ashley County; Zachariah T. Wood, Judge.

Action by Fritz Bros. against H. F. Bailey and another. From a judgment for plaintiffs, defendant Bailey appeals. Reversed.

Robt. E. Craig, for appellant. Geo. W. Norman, for appellees.

BATTLE, J. Fritz Bros. brought this action against R. J. McBride and H. F. Bailey on a promissory note which is as follows:

"$237.25. Montrose, Ark. Nov. 22nd, 1900. February 1st after date I promise to pay to the order of Fritz Bros. two hundred and thirty-seven and 25/100 dollars, at Ashley Co. Bank, Arkansas, value received. [Signed] R. J. McBride."

They alleged in their complaint that the defendants, being partners doing business under the firm name and style of R. J. McBride, executed to them the note sued on for goods previously purchased of plaintiffs.

Bailey answered, and denied that he and McBride were partners, and, as such, executed the note sued on, and that he was indebted to plaintiffs in any sum whatever.

L. P. Thomas testified that McBride and Bailey in June, 1900, at Montrose, Ark., told him that they were partners doing business in the name of R. J. McBride, and that he, as agent of plaintiffs, then and there sold to them, as such partners, 5,000 Marguerite cigars, and that they thereafter executed the note sued on for the amount due to plaintiffs on account thereof, and that the note belonged to him.

McBride and Bailey testified that they did not tell Thomas that they were partners, and that McBride purchased the cigars for himself, and that Bailey was not indebted to plaintiffs or for the cigars.

After the close of the evidence for the defendants, L. P. Thomas testified, over the objections of the defendants, as follows: "At Parkdale, in this county, after this suit was brought, R. J. McBride said to me he did not blame me a bit for trying to make my money out of Bailey; that he knew I ought to recover of Bailey in this suit, but he hoped I would not, because, if Bailey had to pay me, Bailey would force McBride to pay him. Bailey was not present at this

conversation."

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

The undisputed evidence in the case showed that the note belonged to L. P. Thomas. Plaintiffs recovered a judgment against Bailey for $237.25, and 6 per cent. interest thereon from February 1, 1901. The style of the action, preceding the judgment, is as follows: "Fritz Bros. for Use of L. P. Thomas v. R. J. McBride and H. F. Bailey." The record does not show that the complaint was amended. Bailey appealed.

The undisputed evidence shows that L. P. Thomas was the owner of the note, and that Fritz Bros. were not entitled to recover thereon.

The testimony of Thomas as to the conversation with McBride at Parkdale was inadmissible. It was not admitted or admissible for the purpose of impeaching McBride, as no foundation was laid for that purpose. It was not admissible against Bailey, because the statement made by Me

It was

Bride was made in his absence. 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.

LOVEWELL v. BOWEN.

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.

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.

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, 69 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 prosecution where they will be required as evidence, in which event they must be produced in court from an unbroken package, in which they shall be contained while being preserved. The control of the election commissioners over the ballots ceases when they produce them in court. Then they become evidence in the cause, and pass under the dominion and control of the court. Hence it follows that the production of these ballots from the election commissioners after they had been turned into court was not from the proper custodian of them, and no presumptions of official regularity can be indulged on account of the source whence produced. This election officer was admittedly a strong partisan of the appellees in the election, and there is evidence tending to prove that he used whisky and other improper means to influence voters, and that he attempted to bribe the county judge while the contest was pending before him. No sworn evidence from him is found that these ballots were in the condition shown on this trial when he received them. The appellees seemingly rested entirely upon their production by the election commissioner being sufficient to prove their genunineness and integrity. That proof failed to apply, and, no testimony of their genuineness and integrity and unchanged condition being offered, this question rests entirely upon the ballots themselves, as produced by this election officer. In view of the evidence adduced against him, no presumptions can be indulged in their favor. The fact that they passed through the hands and under the inspection of the circuit judge and the attorneys for both sides without discovering this fatal defect is a circumstance against them," and this is especially so in this case, because the attention of court and counsel was then focused on defective markings of ballots by the judges, as that was one of the vital questions presented in regard to Fletcher township at the time these ballots were first being examined. The court is of opinion that the circuit court did not have legally sufficient evidence that these were the identical original ballots, in untampered form, to exclude Pecan township, and therefore in the calculation it should be included.

2. As to Troy township. The integrity of the returns from this township was successfully impeached. It is unnecessary to review the evidence on that subject, because the appellees evidently recognized that fact, and on the trial produced the oral testimony of the judges of election to sustain the returns. The appellant objected to the introduction of oral testimony. If the oral testimony was properly admitted, then there is legally sufficient evidence to sustain the finding of the trial court in including it in the count for appellees; otherwise there is not. In Davis v. Moore, 70 Ark. 240, 67 S. W. 311, this court held that the section 2861, Kirby's Dig., providing for the evidence in election contests

to be taken by depositions, was exclusive of all other methods of taking testimony in these cases, and the terms of the statute on the subject were mandatory. It is insisted that this decision should not be followed. The case was decided after mature consideration, and two of the judges dissented. If the question was presented as an original proposition, taking the individual views of the judges now constituting the court, it might receive a different construction. It establishes a rule of practice, and was decided prior to this trial, and it cannot be said that the rule established is a bad one, or that it works unjustly; and the court declines to overrule that decision. That necessarily excludes the returns from Troy township.

3. Oral testimony was also admitted on the question of township lines, and by it 28 votes in Monroe township and 7 votes in Fletcher township were proved to have been cast by parties living without the townships. The court erred in excluding these votes in Monroe township for another reason. While the township lines were proved by the oral testimony, yet it was shown that for many years the lines recognized by the election judges in this instance had been universally acted upon as the true lines of the township. Under such circumstances, the voters should not be disfranchised on account of universal ignorance of the true technical lines. If authorities are needed on this proposition, those cited in appellants' brief will be found to sustain it. These conclusions, using the basis of appellee's calculation above given, elect appellant Lovewell by 37 votes over Bowen, and leave Driver a majority of 13 votes over Rhodes.

4. On the former appeal the court said: "The contestees have shown that several hundred electors of Mississippi county had their poll tax paid by others, and that they were not qualified electors. But they have only shown that about 116 of these voted, and these are all that we could consider in the court. The proof shows that of these Rhodes received 107, while Driver received 9, and that Lovewell received 106, while Bowen received 8. In the summary of appellees above quoted, 107 votes are excluded from Rhodes, and 106 from Lovewell, on this account. Appellees contend that this is justified by the former evidence and this statement from the opinion. The opinion did not intend to establish this as a fact beyond proof to the contrary in the new trial, but merely stated the situation as then developed, and leave was given for new evidence to be adduced on all points. On the second trial of this cause many electors included in said 106 and 107 lists excluded by the testimony then before this court took the witness stand and testified that they authorized the payment of their poll tax by the parties who paid them, or afterwards ratified the payment, in good faith, and repaid the amount. Many were proved to be tenants whose taxes were paid