460 CASES IN THE SUPREME COURT [27 Ark. Halliburton et al. v. Sumner. [DECEMBER HALLIBURTON et al. v. SUMNER. UNLAWFUL DETAINER-- CirCiat courts have jurisdiction in.—The Provisions of the Code of Practice, respecting jurisdiction in aciions of unlawful detainer, are not to be construed as taking from the Circuit Courts jurisdiction in those actions. SAME. —Lands were sold by an administrator by order of the Probate Court; but previous to the time of confirmation and subsequent to the tinie of sale, the same administrator, with the a pp robation of the Probate Court, rented the lands to another party: On Unlawful detainer brought by the purchaser at the administrator's sale: Held, That the purchaser was entitled to the possession from the time of ratification of the sale, and he was not deprived of any of his rights b y virtue of the lease. APPEAL FROM ARKANSAS CIRCUIT _COURT. Garland 4- Nash, for Appellants. We, submit that, by the purchase of the appellant at the administrator5s sale, the relationship • of landlord and tenant was created between him and the appellee holding under the lease. 1 Washb. • Real Prop., 445. This being true his action was properly brought and his ctise fully made out. 13 Ark., 448; 18 Id. 284-304. That the Legislature could not take
away the jurisdiction of • the Circuit Courts in such action; 4 Ark., 147; 7 Id., 173. Bue if the act attempting 6to take . • away jurisdiction is of any validity, not repealing expressly the jurisdiction in the Circuit Courts, it leaves the jurisdiction concurrent; 25 Ark.; 667, et seq.; Delafield vs. State, 2 Hill (N. Y.) 159, et seq. BENNETT, J.-L -W. H. Halliburton and William A. Sample brought an action of unlawful detainer against Jacob B. Sum-ner, in the Arkansas Circuit Court, at the May term 1870, for the recovery of the possession of certain lands in that county. The issues joined, in the court below, were submitted to a jury which found for the defendant. From which verdict and judgment the plaintiffs appealed. But'two questions are presented in the motion for a new trial :
27 Ark.] OF THE STATE OF ARKANSAS. 461 TERM, 1372.1 Halliburton et al. v. Sumner. Fir's& Had the Circuit Cou°rt jurisdictioi . in an action of unlawful detainer? Second. Was there such a relationship of landlord and tenant existing between the plaintiffs 'and, defendant as to maintain an action of unlawful detainer upon the part of the plaintiffs; and if so, were the plaintiffs entitled to possession on the merits? The question of jurisdiction . was settled by the ac of the Legislature, approved December 16, 1868. Sec. 1 par. 11, says: "In actions of forcible entry and detainer and unlawful detainer, justices of the peace shall only have concurrent jurisdiction with the Circuit Courts." Whatever doubts may .have been thrown upon the question by the wording of the Code, have been removed by this latter enactment. , As to the • sebond proposition, the evidence produced at the 'trial shows that Sevier, the administrator of Jordan's estate, obtained an order • of the Probate Court of Arkansas county, on the .13th day of January, 1869 , to sell certain portions of the lands belonging to the estate, for the purpose of raising money to discharge its indebtedness. The lands said to be unlawfully detained, by the defendant, were included in the order of sale. In obedience to the above order, the administrator offered the lands for sale. At a term of the Probate Court held on the 13th day of October, • 1869, • the adminis-. trator produced . his report of the sale and asked that it be approved mid confirmed; which was accordingly done. By this report, it appears that one J. B. Rick§ was the purchaser at the sale, but he afterwards, with the assent of the administrator, transferred, assigned and relinquished his bid to Wil-liam H. Halliburton, who accepix = d it and agreed to become the purchaser of the lands in p lace of said Ricks. • It also; appears that on the 16th day of October, 1869, it being one: of the days of the regular terms of the Probate Court, thf order confirming the sale of lands, as approved in the admin.-. istrator's report, was set aside, and further action on the report was postponed. On the 13th day of January,- 1870, the,
462 • CASES IN THE SUPREME COURT [27 Ark. Halliburton et al. v. Sumrier. [DEcmuumr 'Probate Court filially Confirmed ' the sale as made by the administrator.* A bond for title was given by the administrator •to W. H. Halliburton, but no date appears upon it, nor was .it ever acknowledged. The evidence also discloses the. fact that the defendant Sumner was a tenant of the administrator for the years 1868-69 and that, at a public renting, by order of the Probate Court; on the 4th day of January, •1870, .rented the lands in controversy f_Dr the Tear 1870, .and that the Probate Court, on the 11th day of April, 1870, confirmed said lease of lands. • We think the question has been settled in the cases of Brad-'ley vs. Hume, 18 Ark., 284, and Frank vs. Hedrick, 18 Ark., 304, that an action of forcible detainer, under .our statutes, will lie at the suit of a pnrchaser of land which, at the time of the purchase, was in the possession of 'a tenant under , a lease from the vendor, upon demand after the expiration 6f the term for which it was leased, although :the purchaser has never been in actual Possession of the land. The evidence, in the case under consideration, shows that Halliburton bought the land 'at an. administrator's sale, about the 1st day of October, 1869, which sale was confirmed on the • 13th day of January, 1870. It, also appears that previous ' to the time of confirmation, and subSequent to the time • of sale, the same administrator, 'with the approbation of the Probate Court, had . rented the land to the defendant -for the year 1870. Now was Halliburton the purchhser at the sale of October 1, 1869, or Sumner, the lessee of January, 1870,'=entitled to the posSession at the commencement of • this sui t ? • It is undoubtedly true that contract of sale, made between the court as the vendor of property, through its agent • or trustee, and the purchaser, is never regarded as consummated until it • has received the sanction and ratification of the court. In the case of ex parte Minor, 11 Ves., 559, it was determined "That a purchase- before the , mas . ter is not complete, before confirmation of the report." Still, wheneVer the ratification
27 Ark.] OF THE STATE OF ARKANSAS. 463 TERM, 187 1 2.] Halliburton et al. v., Sumner. of the sale takes place, the sale becomes absolute from the day of sale and the right' of the purchaser begins from that time. In the case of Wagner-and Marshall vs. Cohen, 6 Gill 102, the court say : "Although this is the character of the imperfdef right acqUired by a purchaser, at a ' sale of this kind, yet, it gives to him an inchoate sad equitable title, which becomes complete by the ratification of the court. When this is accomplished, the ratification re;roacts, and he is regarded by relation as the owner from the period of the sale. He is, as such proprietor, entitled to the intermediate rents and profits of the estate; he cannot escape from the sale because he may believe it to be disadvantageous, and is bound to pay 1 interest on the purchase money ' from its date ; and has, therefore, a direct and strong interest in protecting the property from injury and rendering it as productive as possible." In the case of Jackson ex dem. Noah vs. Dickerson & Thompson, 15 Johnson, 315, the court say : "'I he subsequent delivery of the deed, being mere matter of form, must have relation back to the time of purchase at the sheriff's sale." In the case of Jackson vs. Warren, 32 Ill., 342, the court say : "In England the practice is to keep the buildings open, at a master's sale, so that any person may advance on a bid received by the . master, which he reports to the court, so, until a final confirmation of the sale, no one can be considered a purchaser but a mere bidder ; but under our practice, at such sales, a valid and binding contract of sale is made when the hammer falls. In the absence of fraud, mistake or some illegal practices, the purchaser is entitled to a deed -Ton payment of the money." Although the confirmation of , the sale in the case before us was not made until after the premises were leased -to the ' defendant for the year 1870, we must hold that, ' upon its confirmation, the purchaser, the plaintiff, was entitled to the possession of the premises from that date ; and he being no party to the leasing of the same to the defendant, is not deprived of any 'of his rights by yirtue of the lease. Therefore, the
464 CASES IN THE SUPREME COURT [27 Ark. [ DECE MB ER motion for a new trial was improperly overruled, both as to . / the question of jurisdiction and upon the merits. I The cause is reversed and remanded to be tried anew', not inconsistent with this opinion. 0
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