Schuman v. George , 110 Ark. 486 ( 1913 )

Hart, J.,

(after stating the facts). It is first contended by counsel for appellants that the case of Griffith v. Sebastian County, 49 Ark. 24, is decisive of the present case. There, Griffith conveyed to Sebastian County, for the nominal consideration of one dollar, lots in Fort Smith, to be used as a site for the courthouse. The conveyance was made under a misapprehension common to both parties that Fort Smith had become the county seat, and the anticipated enhancement in value of adjacent lands belonging to Griffith was the real consideration for the deed. It was afterward decided that the county seat had not been removed to Fort Smith, but remained at Greenwood. Griffith filed a bill to cancel the deed. The court held that the deed was founded on an assumption as to the removal of the county seat which was a mutual mistake of the parties, against which Griffith was entitled to relief in equity. Here, as in the Griffith case, the real consideration for the deed was the anticipated enhancement in value of adjacent property belonging to Mrs. Schuman, but the other facts are essentially different. In the Griffith case, the order of the county court establishing the courthouse at Fort Smith was absolutely void, and, on that account, the court held there was a mutual mistake which entitled the donor of the ground for county seat purposes to relief in equity, and the deed was ordered cancelled.

The county court has exclusive original jurisdiction to determine the result of an election held to decide the removal of a county seat. Russell v. Jacoway, 33 Ark. 191. Hence, it will be seen that the order of the county court establishing the county seat in the present case at the town of Bocky Comfort was not a void order, but was a valid one. Of course, it was subject to review on appeal, and, if erroneous, would be reversed or set aside. Carl Schuman, who acted as agent for his wife, knew that a contest was pending when his wife executed the deed to the county. Section 1122 of Kirby’s Digest provides that before the county court shall make any order - carrying into effect the will of the majority voting for the removal of the county seat, the vendor or donor of the new location shall make, or cause to be made, and deliver to the county judge, a good and sufficient deed, conveying to the county the land or location so sold or donated, in fee simple, without reservation or condition. This statute was in force when Mrs. Schuman executed the deed to the county.

In the case of Rogers v. Sebastian County, 21 Ark. 440, the court, in construing this statute, held that the commissioners had no power to receive any donation of land for a courthouse site with a reservation or limitation expressed in the deed, and that this the donor knew, or was obliged to know, it being the public law. As above stated, Sahúman knew, when the deed was executed by his wife to the county, that there was a contest pending over the result of the election for the removal of the county seat and that the decision of the county court locating it at the town of Eocky Comfort was subject to be reversed on appeal. The county court was within its jurisdiction in making the decision, and the order of the court establishing the county seat at Eocky Comfort was valid and made Eocky Comfort the county seat, unless the order was reversed on appeal. Therefore, we hold that the deed was not executed under a mistake of fact. Neither do we think that the case of Gaskin v. Williams, 35 L. R. A. (N. S.) (Mo.) 603, is authority for the position assumed by counsel for appellants. There, the dedication was made under a statute which provides that a duly acknowledged, certified and recorded plat shall vest the fee of such parcels of land as are therein named, described or intended for public use in such city, town or village, when incorporated, in trust for the uses therein named, expressed or intended, and for no other use or purpose. According to the designation in the plat in that case, the block was dedicated to the county for courthouse purposes, and it was so expressed oh the face of the plat. The court said that the statute referred to had been construed by the court to limit the use to the use expressed in the dedication. The court, therefore, held that under the statute the county held the block for courthouse purposes, and for no other purpose. Thereafter, and before the courthouse was erected on the property, the county seat was located at another place, and the Supreme Court of Missouri held that, as a practical proposition, the execution of the trust had become impossible, and that in as much as there was no absolute ownership in the county, and as it had become impossible for the county to execute the trust by using the block for courthouse purposes, the land reverted to the heirs of the original donor. As we have already seen, our statute is entirely different. It provides that the donor of the new location shall make and deliver to the county judge a good and sufficient deed, conveying to the county the land or location so donated, in fee simple, without reservation or condition. The deed required to be executed under this statute being an absolute deed, there can be no reversion to the grantor, and it could only be cancelled as was done in the Griffith case, for mutual mistake of the parties. Here, as we have already seen, there was no mutual mistake of the parties, and Schuman stated, in response to a direct 'question asked by his counsel, that the deed was made on condition that the county seat would be located at Eoeky Comfort. Under the rule announced in the case of Rogers v. Sebastian County, supra, this condition was void, even if written in the deed, and the court there held that no such condition could be attached by parol agreement.

It follows that the chancellor was right in holding that neither of the plaintiffs had any interest whatever in the property in controversy. It will be noted that in 1898 the property, by deed, was dedicated to the public, and the record shows that the dedication was impliedly accepted. A town was platted, and lots were sold on the faith of this dedication, and we do not attempt to decide as to the rights of parties who have purchased lots adjacent to the property in question, for these parties are not before the court. It is certain that the decree of the chancery court of February 16, 1908, did not affect the rights of any of these parties, because the only parties to that suit were the plaintiffs in this action and the •courthouse commissioners. The public was not represented at all. The suit was instituted by the courthouse commissioners against Carl and Eliza Schuman, and the decree was rendered upon the pleadings, without any proof being taken, and the decree could not affect the rights of any one not a party to the suit. It will be noted that the dedication to the public was made before the election for a relocation of the county seat was ordered. Hence, it may be said that that decree was of no effect whatever, and that the deed made by plaintiffs to the county on the 18th day of February, 1903, was the voluntary act of the plaintiffs. If they subsequently reacquired title to the property by the decree of June 15, 1912, referred to in the statement of facts, then their title inured to the benefit of the county. Horsely v. Hilburn, 44 Ark. 458. If that decree did not reinvest title in the plaintiffs (a question which we do not decide because it is not put in issue in this casé), then the title remains in the public, and the plaintiffs have no title to the property in question. Therefore, the decree of the. chancellor dismissing the plaintiff’s complaint for want of equity was correct, and it will be affirmed.