Supreme Court

OF THE STATE OF ARKANSAS. 359 TERM, 1859.] Ashley et al. vs. Rector et al. [Vol. XX. ASHLEY ET AL. VS. RECTOR ET AL. The Court re-affirms the principles settled in Rector et al. vs. Gaines et al., 19 Ark. 71, as to what acts constitute a valid location of a New Madrid certificate, and an appropriation of the public land to the suffer-er, or his assignee, etc.

A letter from the surveyor of the public lands of Arkansas, dated 7th July, 1838, addressed to the Recorder of Land Titles of Missouri, stating that an application had recently been made to him for a copy of the survey made by virtue of a New Madrid certificate, and that a copy of said survey was furnished the applicant, with the exception of the meanders of the Arkansas river, is not competent evidence to prove that such a survey was in fart made. A survey made in 1839, for the purpose of perfecting the location of a New Madrid certificate, would be of no validity as against the rights

of one who had previously purchased the land of the Government. A person obtaining a New Madrid patent certificate on the 16th of June, 1838, and, after another had purchased the land of the Government, should make it appear that the certificate was issued upon a survey and return to the office of the Recorder of Land Titles, etc., made prio p to such purchase; otherwise, the presumption is against the validity of

the certificate. Where several persons are tenants in common of a New Madrid claim to a tract of land, and one of them purchases the land of the Govern-ment, takes the title in his own name, and, for more than ten years, he, arid those claiming under him, hold the land openly and adversely,

360 CASES IN THE SUPREME COURT Vol. XX.] Ashley et al. vs. Rector et al. [MAY doing repeated public and notorious acts hostile to the rights of the co-tenants, they are barred by limitation. Where several persons, in the year 1825, by a written instrument, recog­nized each other as joint owners of a New Madrid certificate, and agreed to make partition of the title to the land, derived by virtue thereof, one of them was guilty of no fraud upon the rights of the other joint own-ers, by purchasing the land of the government, in the year 1836, after failure of the parties for so long a time to perfect the New Madrid claim to the land, and after it had been declared invalid by the head of the Land Department of the Government. Whether a joint owner of the New Madrid claim (under the instrument referred to) could have obtained the benefit of the adverse title, so purchased, if he had filed a bill within a reasonable time, and offered to contribute his due proportion of the expense of purchasing the ad­verse title, the Court does not decide, as such is not the case before

them.

Appeal from the Chancery Court of Pulaski County. BILL and CROSS-BILL determined in the Pulaski Chanaery Court. The bill was filed, 4th May, 1850, by Mary W. W. Ashley, as executrix of Chester Ashley, deceased, and Roswell Beebe, against Henry M. Rector, to quiet title, etc., to the north-west

fractional quarter of fractional section three, south of the Ar­kansas river, in township one, north of range twelve west, em­

braced within the plan of the city of Little Rock. The complainants claim under Chester Ashley, who pur­chased the land of the State, on the 8th of June, 1838, as part of the five sections of land granted to the State for the purpose of completing the public buildings, by act of Congress, ap­proved 23d of June, 1836. On the 26th of August, 1850, Rector filed his answer, making

it a cross-bill against the complainants and other persons. The substance of his claim to the land,. as set up in the cross-bill, is that a New Madrid certificate, issued to Cockerham, was loCated on 640 acres of land, embracing the fractional quarter in controversy : That, by a succession of transfers, Ashley, Simpson and Post became the owners of the New Madrid claim, and recognized each other as such by entering into the follow­ing agreement :

' OF THE STATE OF ARKANSAS. 361 TERM, 1859.] Ashley et al. vs. Rector et al. [Vol. XX. "It is hereby agreed by and between Justus Post, Robert Simpson and Chester Ashley, as follows, viz : each of the afore­said persons claim an interest, and have title to a portion of a. New Madrid location of six hundred and forty acres, located near Little Rock, by the legal representatives of Henry Cocker-ham, by virtue of a certificate No. 156, the three aforesaid persons, therefore, hereby agree that all their several claims, on said six hundred and forty acres, shall be united, and the inte­rest derived by virtue of the united claims of all three, shall be so divided that Justus Post shall receive two-fifths of all the interest acquired by the united tit]es of all three, and the said Robert Simpson and Chester Ashley shall have the residue, to be equally divided between them, the title paper for the said certificate, previous to our own, in the hands of Justus Post. Given under our hands and seals, this 19th February, 1825. CHESTER ASHLEY, [SEAL.] ROB'T SIMPSON, [SEAL.] JUSTUS POST. [SEAL.]" That on the 17th May; 1838, Post conveyed his interest in the New Madrid claim to Rector.

zIt is insisted in the cross bill that the New Madrid claim is, valid; that Ashley's purchase under the five section act was void ; and Rector prays that it may be so decreed, and the 640 acres of land, upon which the New Madrid certificate is alleged by him to have been located, be partitioned between himself, the heirs, etc., of Ashley, and the representatives of Simpson. The Chancellor decreed that the New Madrid claim was valid, and paramount to Ashley's purchase of the State, and that partition of the 640 acres be made, as prayed in the cross bill, etc. The complainants in the original bill appealed. Additional facts in relation to the titles of the parties, the pleadings, evidence, etc., appear in the opinion of this Court.

S. H. HEMPSTEAD and WATKINS & GALLAGHER, for the appel-lants, argued this cause at length, as to the validity of the New

362 CASES IN THE SUPREME COURT Vol. XX.] Ashley et al. vs. Rector et al. [MAY Madrid claim; and contended that there was not a legal loca­tion of the claim; that there was not any authorized or authen­tic survey of it, so as to enable the Recorder to act within the law. No plat was returned to him and recorded. The appropriation under the New Madrid acts was not com-plete—an exchange of titles did not take place until an author­ized and legal survey was made, returned to the Recorder, was examined, passed upon, approved and recorded by him—then the United States assented to the change; and not until then. Bagnell vs. Broderick, 10 Peters 446; Barry vs. Gamble, 3 How. 51 ; Lessieur vs. Price, 12 How. 72; Cabunne vs. Lindell, 12 Miss. 186; Opinion of Atty.. Gen. Cushing in 1851. If there had been any actual survey of this claim, that sur­vey and the plat thereof must have been returned to the recor­der of land titles at St. Louis, and recorded in his office; and a copy of the record produced. The statement of Cross, that there was a survey, is inadmis-

sible; because, what appears of record cannot be shown by a certificate of the recording officer. Maguipe vs. Sayward, 9 Shep. 230; and the following cases will show that his state­ment or certificate is no proof of an actual survey. Mays vs. Johnson, 4 Ark. 613 ; Hill vs. Bellow's, 15 V erm. 727; Green-wood vs. Spiller, 2 Scam. 502; Morton vs. Barrett, 1 App. 109; 1 Greenl. Ev. 498. The agreement between Ashley, Post and Simpson in 1825, for the purpose of uniting their several titles, and then dividing the same in certain proportions, was abandoned. The decision of the attorney general as to pre-emption and New Madrid

claims south of the Arkansas river, made in 183, was known :

and it was the general belief that such claims were invalid. It is . to be noted that the agreement was for a mere division of rights, and did not contain any covenant or obligation on .the part of Ashley to obtain any further title, or take any step

towards that object. But supposing the agreement to have constituted a tenancy in common, and that Rector, by his purchase, stood in the place

OF THE STATE OF ARKANSAS. 363 TERM, 1859.] Ashley et al. vs. Rector et al. [Vol. XX. of Post ; yet Ashley, by purchasing from the State, in his own name, disavowed or severed the tenancy, and his holding from that time was adverse. The severance took place in 1838, and the suit was not brought until 1850—twelve years afterwards. The assertion of title by Ashley, under his purchaSe from the State, was public and notorious—his deed was placed on record, of which Rector, by law, had notice.

If a tenant publicly disclaim his landlord's title, and profess to hold under a hostile title, the statute of limitations will betrin to run from the time of such disclaimer. Angell on Lim. 513, 507; 2 McLean 376. To make the possession of a tenant in common adverse as against the other, it is not necessary that notice should be given of lhe adverse intent; but the intent must be manifested by outward acts of an unequivocal kind. Lodge vs. Patterson, 3 'Watts ; Gillespie vs. Osborn, 3 A. K. Marsh. ; Angell on Lim. 463, 464; .Willison vs. Watkins, 3 Peters 51; Leonard vs. Leonard, 10 Mass. 231 ; Marcy vs. Marcy, 6 Mete. 360. One tenant in common, buying a distinct title from the com-

monwealth, and entering and holding under that title, is an ouster of his co-tenant, and the statute of limitations will run in his favor. 3 A. K . Marsh. 72 ;- 13 B. Mon. 436. See, also, Law vs. Patterson, 1 W. & S. 184 ; Lewis vs. Robinson, 10 Watts 354; 4 Watts & Serg. 251 ; Baird vs. Baird, 1 Dev. & Bat. Ch. 524; Rieard vs. Willison,7 Wheat. 59 ; 3 How.(Miss.)Rep. 297; 3 Ssonner 152 ; 16 Peters 455 ; Riley's Ch. Cas. 41 ; 18 Ala. Rep. 50; 21 Conn. 379; 7 Barb. Ch. Rep. 91 ; 1 Lomax 262. If the agreement of 1825 should be considered as creating a trust, still a disavowal of it may be made, for it is well settled that if a trustee should deny the right of his cestui gue trust, and assume absolute ownership of the property held in trust, he abandons his fiduciary character, and the statute begins to run. Kane vs. Bloodgood,7 Johns. Ch. R. 90; Angell 171 ; Robinson vs. Hook, 4 Mason 152.

It is clear, that if any trust relations subsisted, they were severed, first, by denial on the part of Ashley ; and second, by

364 CASES IN THE SUPREME COURT Vol. XX.] Ashley et al. vs. Rector et al. [MAY Rector himself ; and after the period of limitation has run, and lapse of time has barred his rights, he cannot go back to revive a. tenancy which he then repudiated ; or set up a trust which was then destroyed. Burhaws vs. Van Zandt, 7 Barb. 91. As to the right of the appellants to rely upon lapse of time, as a bar to the claim set up in the cross bill, see 7 Eng. Law Eq. 141 ; Taylor vs. Adams ad. 14 Ark. 65 ; Hunt vs.-Wickliffe, 2 Peters 201 ; Waller vs. Huff, 5 Humph. 91; Cuyler vs. Brodt, 2 Cain Cas. E.; 1 Dev. & Bat. 325 ; 3 Y erg. 205; . 3 Humph.. 462; 5 lb. 290 ; Avery vs. Holland, 2 Overton 71; Angell &

Ames on Lim., sec. 429. In every or any adjudged case that can be produced, where tenants in common are held to be trustees of the title under which they entered or hold, and bound to protect that title for their common benefit, it does and must appear as an assumed fact, that there was a title, under which they lawfully might hold possession. Those or any such cases can have no applica­tion to a case where there never was any lawful possession, and no title, or right to a title in anybody. Confessedly, this land remained the property of the United States until June, 1838, or until patented in 1840, under a state location, distinct from, and adverse to the suppose& New Madrid claim. Unless that claim is shown to have been a valid one, and the superior claim, a contract about this land was not one made between tenants in common, but between trespassers or intruders ; not about lands which they held in common, but about public lands of the United States, in respect of which they could not make any valid contract at all. Upon the broad equity of this case, we submit that the agree-ment, executed in 1825, between Ashley, Post and Simpson, respecting their supposed claims to this New Madrid location, was virtually at an end in 1836, when, according to the decisions of the General Land Office, it became understood that New Madrid locations, south of the Arkansas river, had no vitality, and it was not, therefore, any violation of the agree-ment, either in law or in morals, for Ashley to set about

OF THE STATE OF ARKANSAS. 365 TERM, 18591 Ashley et al. vs. Rector et al. [Vol. XX. acquiring a perfect title, a wholly independent title to himself : and the general doctrine of equity, requiring good faith be-tWeen tenants in common, has no just application to a case of this kind, where there was no title, out of the Government, in any body to this land, and no right to the possession of it ; be-cause, unless the supposed New Madrid claim was a valid one, according to the uniform course of decisions of this Court (Floyd vs. Hicks, 14 Ark. 291; Wynn vs. Morris, 16 Ark. 434; Wynn vs. Garland, lb. 452) the possessors under it would be mere squatters, intruders or trespassers.

CUMMINS & GARLAND, FOWLER & STILLWELL, for the appel-lees, also argued this case at length, as to the validity of the New Madrid claim.

The statute of limitations was insisted on at the hearing, to defeat the claim of Rector. In answer to this, it is unnecessary to say more than that, if the pleading was such as to let in that defence, there is no proof of adverse possession, by any of the appellants. The only evidence of possession, in the case, is Col. Ashley's answer, in which he admits that he held it with the other owners of the New Madrid claim. And the statute never runs, until there is actual adverse pos-session. Brown vs. Kimball, 25 Wend. 267. As against the appellees, his co-tenants, the defence is not

available to Ashley and those claiming under him. McClung vs. Ross, 4 Cond. 608; Bradstreet vs. Huntington, 5 Pet. 440; Boone vs. Chiles, 10 Pet. 233; Smart, etc. vs. Waterhouse, 10 Y erg. 104 ; Patten vs. Overton, 8 Humph. 196; 3 How. (U. S.) R. 688. Adverse possession will never be presumed, but must be clearly proved. Smoot vs. TVathen, 8 Ho. H. 525; Jackson vs. Sharpe, ,9 Johns. 167; Jackson vs. Waters, 12 lb. 368 ; Grafton vs. Grafton, 8 S. cel M. 87. They commenced this suit themselves, and cannot now be permitted to d • efeat the defence, or any relief claimed in the

366 • CASES IN THE SUPREME COURT Vol. XX.] Ashley et al. vs. Rector et al. [MAY cross-bill, by setting up the statute. Adams vs. Taylor, 14 Ark. 68. As to Col. Ashley and his heirs and devisee, and Beebe, who claims through him, it was unnecessary to enquire whether the New Madrid certificate was properly located or not. Col. Ashley, by the contract or agreement entered into by and be­tween him and Justus Post and Robert Simpson, on the 14th of February, 1825, assumed relations and took upon himself duties to them, that he could not throw aside, and relieve himself from, when he saw fit. He became a trustee for them and Rector and ChaMbers' heirs, claiming by purchase through them. It does not lie in their mouths, to say, that the location was irregular, that it was not made by a. legally authorized person or that it was not made at all ; or that the chain of title from Cockerham down to Post and Simpson is not perfect. That agreement closes the door, they are stopped from going behind it. -Whether their title was legal, equitable, or no title at all, Ashley was bound to protect it ; and whatever subsequent title he acquired inured to their benefit as well as .his own. Patton vs. Ashley, 8 Ark. 290, et seq.; Massie vs. Watts, 2 Cond. 339 ;

Hallett vs. Collins, 10 How (U. S.) R. 182; Russell vs. Ashley et al., Hempstead's R. 704; AT organ vs. Boon et al.,4 Monroe 297; Aiorrison's Ex., 5 Ib. 435; Green vs. Winter, 1 Johns. Ch. R. 36; Piatt vs. Oliver et al., 2 McLean R. 267; Andrews et al. vs. Jones, 10 Ala. (N. S.) 471; Threadgill vs. Pintard 12 How. (U. S.) 24; 5 Johns. Ch. R. 407; 2 B. cC P. 298; 15 Ark. 312. Ashley having attempted to defraud his co--tenants, and secure the entire estate to himself, lost all claim to contributiJn from them, for money he paid to the State. And if this was not the case, the pleadings are not so framed as to admit of a decree in favor of those claiming under him; nor is there any evidence that he ever paid a cent. See Russell vs. Ashley et al., Hempstead's 1?. 704.

OF THE STATE OF ARKANSAS. 367 TERM, 18591 Ashley et al. vs. Rector et al. [Vol. XX. Hon. THOMAS JOHNSON, Special Judge, delivered the opinion of the Court. The first point that we consider necessary and proper to set­tle in this case, relates to the sufficiency of the location under the New Madrid claim of Cockerham, to constitute an appro­priation of the land in ccintroversy. The decision of this ques­tion will necessarily depend upon the construction that shall be placed upoli the act of Congress, of February 17th, 1815. That act provides that any person owning lands in the county of New Madrid, in the Missouri Territory, according to the extent said county had on the 10th of November, 1812, and whose lands had been materially injured by earthquakes, should be authorized to locate the like quantity of land on any of the public lands of said territory, the sale of which was author­ized by law. No person was allowed tO locate a greater quan­tity than might be confirmed to him, and in no case to exceed 640 acres ; but the owners of lots or tracts of land injured, and less in quantity than one hundred and sixty acres, were permit­ted to locate any quantity, not exceeding that number ; with a proviso, that in every case where such location should be made according to the provisions of that act, the title of the person or persons, to the lands injured, as aforesaid, should revert to, and become absolutely vested in the United States. The claim­ant was required to satisfy the Recorder of Land Titles, by the oath of one or more competent witnesses, that he was entitled to a tract of land under the provisions of that act, and upon being satisfied of his right to make such location, in lieu of that injured, it became the duty of the Recorder to issue a certificate for that purpose, to the claimant. The certificate thus issued might then be located, on the application of the claimant, by the principal .deputy surveyor, for said Territory, or under his direction : and it was made his duty to cause a survey thereof to be made, and to return a plat of the same to the Recorder, together with a noticein writing, designating the tract or tracts thus located, and the name of the claimant, and which plat and notice the Recorder was required to spread upon the records of

368 CASES IN THE SUPREME COURT Vol. XX.] Ashley et al. vs. Rector et al. [MAY his office. It was then made the duty of the Recorder to trans­mit a report of the claims allowed, and locations made, under the act, to the Commissioner of the General Land Office, and to deliver to the party a certificate, stating the circumstances of the case, and that he was entitled to a patent for the tract therein designated. That certificate the claimant was required to file with the Recorder within twelve months from its date, and thereupon the Recorder was to issue a certificate in favor of the party, which certificate, being transmitted to the Com­missioner of the General Land Office, entitled him to a patent, to be issued in like manner as was provided for other.. public lands of the United States. The Supreme Court of the United States, in the case of Bagnell vs. Broderick, (13 Peters Reports, 436, et seq.,) whilst passing upon said act of Congress, said:

"The United States never deemed the land appropriated until the survey was returned, for the reason that there were many titles and claims, perfect and incipient, emanating from the provincial governments of France and Spain, and others from the United States, in the land district where the New Madrid claims were subject to be located. So there were lead mines and salt springs excluded from entry. Then again, the notice of entry might be in a form inconsistent with the laws of the United States, in all which cases no survey could be made in conformity with it. The location referred to in the act, is the plat and certificate of survey returned to the Recorder of Land Titles ; because, by the laws of the United States, this is deemed the first appropriation of the land, and the Legislature of Mis-souri has no power, had it made the attempt, to declare the notice of location filed with the Surveyor General, to be an appropriation contrary to the laws of the United States." And in Barry vs. Gamble, (3 How. Rep. 840 when speaking of the Recorder's certificate to Lesseur, for 640 acres of land, in compensation for land injured by the earthquake in New Madrid county, the court said: "On this, the survey of April, 1815, is founded. Its return by the surveyor, with a notice of location, to the Recorder, was the first appropriation of the

OF THE STATE OF ARKANSAS. 369 TERM, 18591 Ashley et al. vs. Rector et al. [Vol. XX. land, and not the notice .to the Surveyor General's Office, re­questing a survey to be made, as the court held in the case of Bagnell vs. Broderick, 13 Peters Rep. 450 ; and again in Les­seur vs. Price, 12 How. U. S. R. 60., the court said that a New Madrid loCation, though a professed bounty to, and at the option of persons whose lands were injured, is nevertheless up­on a consideration, being an exchange of lands. The title of the injured land does not revert to the United States according to the terms and obvious construction of the act of 1815, until the location is completed, by the yeturn of the survey, and notice to the Recorder of Land Titles, and a record of it made in his office ; and until this is done no title is divested out of the Uni­ted States, or vested in the locator, and the land remains the property of the United States, subject to be apprOpriated, etc., and the court further say, in that case, that this is tbe meaning of the Statute of Missouri, authorizing those claiming lands by New Madrid locations, to maintain ejectment; that is to say, a location, which is an appropriation of the land perfected in the Recorder's Office, when the exchange of titles takes place.— This court, in the case of Rector et al. vs. Gains, et al. 19 Ark. 86, when commenting on these authorities in connection with the New Madrid act, said : "The true question on the point, is not what is a location in general, or what is, in general, the proper signification of that word ; but what is the location con­templated by the New Madrid acts? and we feel constrained to hold, that according to these authorities, and not, as we think, at all inconsistent with the plain language of the acts, and cer­tainly in accordance with a safe and wise policy on the part of the government, that location was the actual survey and return of the plat by the surveyor to the Recorder. Until such return and its approval, on the part of the government, there was no commencement of right or title to the land applied for, no sev­erance of it from the public domain. Then, for the first time, rights to the respective lands exchanged vested respectively. Before that point of time, either party could recede. It was a standing offer on the part of the government, which the New xx Ark.-24