Jimmerson v. Fordyce Lumber Co. , 106 Ark. 127 ( 1913 )

Hart, J.,

(after stating the facts). It is true, as stated by counsel for appellant, that the courts are without jurisdiction t'o determine the rights of rival claimants of land of the United States while a controversy is being waged before the proper officers of the Interior Department to settle such rights. Marquez v. Frisbie, 101 U. S. 473; Cosmos Exploration Co. v. Gray Eagle Oil Co., 190 U. S. 301; Zimmerman v. McCurdy, (Dak.) 12 Am. & Eng. Ann. Cas. 29, and case note.

The allegations of the complaint, however, do not bring the present case within that principle. Here there was no contest pending in the land office between the claimants at the time the ejectment suit was pending. The allegations of the complaint are that appellee brought a suit in ejectment against appellant in the circuit court for the possession of said land, and obtained judgment against him. The complaint purports to exhibit a copy of the judgment in the ejectment suit, but the judgment does not appear in the transcript. In the case of Marquez v. Frisbie, supra, it was held that, a court will not, by reason of its jurisdiction of the parties, determine their respective rights to a tract of public land, which are the subject-matter of a pending controversy whereof that department has rightfully taken cognizance, nor will it pass a decree which will render void a patent when it shall be issued. But the court said:

“We did not deny the right of the courts to deal with the possession of the land prior to the issue of the patent, or to enforce contracts between the parties concerning the land. But it is impossible thus to transfer a title which is yet in the United States.”

Section 2738, Kirby’s Digest, provides that an action for the recovery of real property may be maintained in all cases where the plaintiff claims the possession of the premises under or by virtue of:

■First: An entry made with the register and receiver of the proper land office of the United States.

Second: A pre-emption right under the laws of the United States.

The ejectment suit in question was for the possession of the land, and under our statute and the authorities cited above, the court had jurisdiction to determine that issue. See also, Trulock et al v. Taylor, 26 Ark. 54; Chowning v. Stanfield, 49 Ark. 87.

The allegations of the complaint are to the effect that the certificate of purchase issued to appellee or its grantor was void was within the knowledge of the appellant when the ejectment suit was brought and, in discussing the principles of law applicable in such cases, in the case of Carnall v. Looper, 35 Ark. 107, the court said:

“The doctrine is well settled that equity will not-interpose to relieve against a judgment of a court of law upon a ground purely legal and exclusively cognizable in a court of law, which the party might have availed himself of as a defense to the action at law, unless he was prevented from making such defense by surprise, accident, or mistake, or fraud of the other party, unmixed with negligence on his part, or unless he was ignorant of important facts material to his defense, and which he could not by due and proper diligence have discovered, and availed himself of in the action.” (Citing authorities).

Thus it will be seen the appellant might have interposed as a defense to the suit for the recovery of the possession of the land the very matters which he now relies upon to maintain this suit in equity, and for that reason he is not entitled tb relief in the present action, and th,e. court properly dismissed his complaint for want of equity.

Appellant, however, alleges in his complaint that since the determination of the ejectment suit against him the Interior Department of the United States has issued to him a patent to the land, and we do not in this opinion wish to be understood as denying him his right to assert his title in a proper suit in the proper forum.

The decree will be affirmed.