414 . CASES IN THE SUPREME COURT [27 Ark. Chaplin v. Holmes. [JUNE CHAPLIN v. HOLMES. MARRIED WOMEN — When may sue alone.—Where the action concerns the separate property of a married woman, she may sue alone. CLOUD urcnv TITLE — In proceedings, affidavit not, reguired.—In a proceeding to remove' cloud or doubt from title, the affidavit re q uired by the statute to be filed before actioin for the recovery of land, or the possession thereof, is not required. SAME—What complaint must allege.—The party must allege, in his complaint, either that he is in; possession, or some other fact, which renders it impossible for him , to vindicate his title at law. SAmE—Color of title in olfendant.—The complaint should allege, by way of recital, or otherwise, such facts, under Which defendant claims, as • would give defendant some color of title, or such prima facie evidence of • title as to. require proof of extraneous facts to avoid them. COUNTY COURTS—Action of, when void.—The holding of a county court at a time other than that prescribed or authorize& by law, and all proceedings thereunder; are coram non judice and void. APPEAL FROM CHICOT CIRCUIT COURT. HCal HENRY 'B. gORSE, Circuit Judge. Garland & Nash, for Appellant. The demurrer should have been sustained. The statute is positive in requiring the affidavit to be made. See Gould's Dig., Chap. 106, Secs. 6-9 ; and this statute has been sustained and enforced in such a case as this : Craig. vs.. Flanigin, 21 Ark., 319. This decision standing, . the case should be reversed : Pope vs. Mason, 23 Ark.,. 644. English & English, for Appellee. First. A married woman may sue alone where the action Concerns her separate property. See Code, Sec. 42. And, independent of the Code, she may bring a bill respecting such property : Story Eq. Sec. 63. Second. It was not necessary in a . bill of this character for complainant to aver that she was in actual possession of 'the lands. The averment of title was *sufficient : Bonnell vs.
27 Ark.1 OF THE STATE OF ARKANSAS. 415 TERM, 1872.] Chaplin v. 'Holmes. Roane, 20 Ark., 120, and cases cited; Ringold vs. Waggoner, 14 Ark., 69; Mitchell and Wife vs. Etter ' et al., 22 Ark., 178; Shell et al. vs. Martin, 19 Ark., 139. Third. As to the statute of limitations, it will not avail by demurrer, unless it appears from the face of the bill that the remedy or relief sought is barred: Story Eq. Pl. 503-506-751. lt will not apply where it appears from the bill that the complainant is a. married woman. See Acts 1868, Sec. 57, p. 277. Fourth. As to the objection that no affidavit Was filed before the issuing i d the writ, it is sufficient answer to say that the want of affidavit is . n ever grounds for demurrer to a plead- ing. See cases collected in Rose's Dig. p. 621. HARRISON, J.—This was a complaint in equity,. .the Chicot Circuit Couit, ty Rebecca A. Holmes, the wife of Newland Holmes, againSt Hanson W. Chaplin, the object of which was to , set aside and cancel two tax deeds, and remove the clouds of the 'saine from her title. The substance of the complaint was, That she is the owner of 'certain lands in ChiCot eounty, as her separate 'property, which were assessed in the year 1866, in the name of John B. Robinson, a non-resident; that the taxes not having been' paid, nor the lands offered for sale, on the' second Monday in March. 1867, the judge, and other niembers of 'the County Court, as-- suming to hold' a special term of 'the 'court on the third day of June, 1867, passed an' order that the '. collector of taxes should offer the lands for sale on the 26th day of Augnst, following; -that in pursuance of suel order, they were offered by the 'collector, on that day, and bought by the defendant for $128, the aggregate sum of the taxes, penalty and costs, which the defendant paid, and he -received, from the collector, a cer--tificate of purchase; that on the 29th day of May, 1868, the collector made the defendant a deed for the lands, falsely reciting therein, a sale for the same taxes and at the same sum, on the 15th day of April, 1867; that the plaintiff not having redeemed the lands within one year from the day of sale, the
416 CASES IN THE SUPREME COURT [27 Ark Chaplin v: Holmes. [JUNE collector, upon the application of the defendant, on the .30th day of..December, 1868, executed another deed • to him for them, in conformity with the 'sale.. The complainant further alleged that the plaintiff had tendered to the defendant the money which he paid for the lands, and one hundred per centurn thereon, with interest on the whole sum from the sale„ and that he had refused to receive the .same; , and then charged that the deeds were clouds upoh her title, and prayed that ,they should be eancelled and the clouds 'removed. . The defehdant demurred 'to the complaint, • nd assigned the following grounds therefor : 1. That the plaintiff's husband was not made a party to the suit. 2. That she did not, before the .commencment of the suit; file •with the clerk • an affidavit that she had tendered to the defendant the full amount of- all taxes' and costs which he had , paid on account of • the lands, .with ' interest on the same, at the rate of one hundred per centum, the amount first paid, ' and .twentyLfive per centum upon all ;costs and -taxes paid upon them since,' and the 'value • bf the: improvements the defendant had Made, and that' the same. had' . beeh • refhsed. L3. That it was not alleged or shown -in 'the : coMplaiiat ,that the' plaintiff was in pOssession of the land; and. 1. That there was • no equity in the complaint. The court 'overruled the deinurrer, and rendered a decree in accordance with the prayer of the complaint. The first objection 'raised'by::th „ e demurrer may be • readily disposed of. The Code of Civil Practice, Section 42, expressly provides that a married wohan inay "sue alone, where the action concerns her separate property. • The second • is equally as ' untenable. .If , . such an objection • cohld, in suits of the nature of the present, the object of which is not the recovery of the land or the possession thereof, but simply to clear the title from doubt and clouds, in any manner avail, it certainly cohld not by* demurrer, , which will only lie for for • objections apparent upon the face • of the coin-
Y.4 Ark.] OF THE STATE OF ARKANSAS. 417 TERM, 1872.] Chaplin v. Holmes. plaint, either from the matter inserted or olnitted therein, .or trom defects in the fr4me or form thereof : Story Eq. Plead., Sec. 448. But it will plainly be seen, by a reference to the statute, that such an affidavit is required only in actions for the recovery of the land, or for the possession thereof : Sections 6-9, Chap. 106, Gould's Digest. The third, according to the decision in Apperson & Co. vs. Ford et al., 23 Ark., 74, and Danley vs. Byers et al., ante, was well taken. We do not wish to be understood, however; as deciding that a party, out of possession, can in no case, or under no circumstances, maintain a suit to dispel clouds from. his title; we only mean to assert the very plain proposition that he must allege, in his complaint, that or some other 'fact which renders it impossible for him to vindicate his title by an action at law. The fourth and remaining ground of demurrer is the general one of want of equity in the complaint Were the complainant not liable to the objection just noticed, it does not, we conceive, present a case for relief, or show that the deeds operate as an injury to the plaintiff. The, power of the collector to sell land for taxes, not being • a general authority to sell, but only at the time and in the manner prescribed by the statute, a sale at -any other time or in any other manner would be a nullity. Back on Tax Titles, 46; McDermott vs. Scully, ante, and the cases there referred to. By section 136, Chapter 148, Gould's Digest, it is provided that if, from. any cause, the collector should fail to sell on the second Monday in March, the County Court may order him to sell on some other day, to be fixed by it. Did the court make such an order? To answer this question we must first determine whether a County Court can be held at other times than those fixed by law for the terms thereof, or, in other words, can there be a special or called term of the County Court? The terms of the County Court of Chicot county, as established. by the Legislature, are held on the third Mondays in 27 Ark.-27
`:4 1 8 CASES IN THE SUPREME COURT [27 Ark, , GImplin,v. Holmes. [JuNE • January, 'April, JUly and October, )and no , provisiou is made • . for holding any other, or a special br balled term. In Dunn • vs. The State, 2 Ark., 229, it was held that the law having • fixed the time for holding the Circuit Courts, they could not • be held at any other, except in the ' special . cases expressly provided for ; a doctrine as applicable to the county as the . Circuit Courts—expressio unius est exclusio alteriw. There being then no authority for holding a special term • of • the Connty Court, the order \ or proceeding under which • the sale was made was coram non judice and void. The complaint, except as we have stated, contains no allegations in respect to the recitals in the deeds, and although • copies of them are filed as exhibits, we may not refer to them to ascertain what they. recite. Newman's Plead. and Practice, 250 ; Allen and Wife vs. Shortridge, 1 Duval, 34 ; Hill. vs. Bar-rett, 14 B. Monroe, 83. If they contain only such as are consistent with the facts alleged, they are void upon their face, and give no color of title to the defendant, and there is nothing in th e complaint which even tends to show that they do. To operate to the detriment of the plaintiff they must contain such prima facie evidence of title as to require proof , of extraneous facts to avoid them. • Chancellor Wälworth, in Van Doren vs. Mayor, etc., of -New 'York, 9 Paige, 389, said : "A valid legal objection, appearing upon the face of the proceedings through which the adverse party can alone claim any right to the somplainant's land, is • n ot , in law such a cloud upon the complainant's title as can authori ze a court of equity to set aside or stay such proceedings. That can never be considered a legal cloud which can • not for a mom ent obstruct the unaid ed rays of legal science, . when they are brought to bear upon tbe supposed obscurity. But where the claim of the adverse party to the land is valid upon the face of the in strum ent, or the proceedings sought to be set aside, as where the defendant has procured and put • Upon record a deed obtained 'from the complainant by fraud , ;• br upon an usurious consideration which requires the estab-
27 Ark.] s OF THE STATE OF ARKANSAS. 419 TERM, 1872.] iishrnent of extrinsic facts to show the supposed conveyance to be inoperative and void, a court of equity may interfere, and set it aside as a cloud upon the real title to the land." Livingston vs. Hollenback, 4 Barb., 9; Van Rensalaer vs. Kidd, lb., 17; Simpson vs. Lord Howden, 3 Mk & Craig, 97. The demurrer should have been sustained and the complaint dismissed. The decree is reversed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.