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Stephens 0. Holmes, et al.

[DECEMBER

Under that statute, no deed could be executed by the collector of revenue until after the expiration of one year from the date of the sale. Section 126 of the same statute provides that the "certificate of purchase shall be assignable, and an assignment thereof shall vest in the assignee, or his legal representatives, all the right and title of the original purchaser.”

By section 129 it is provided that the collector, after the lapse of one year from the time of sale of lands belonging to non-residents, if not redeemed, shall execute to the purchaser, his heirs or assignee, a deed of conveyance. Section 130 provides that, upon the deed being executed, acknowledged and delivered by the collector to the purchaser, the title, both in law and equity, shall vest in the grantee.

It is evident to our minds that it was not the intention of the Legislature enacting the statute, above referred to and quoted, to vest the title, either legal or equitable, in the purchaser or holder of the certificate of purchase of lands or town lots sold for payment of taxes, until after the execution and delivery of a deed by the collector for such lands or town lots. Therefore, the relation of vendor and vendee, necessary to create the vendor's lien, never existed between the complainant and any of the defendants, for it does not appear that the collector of revenue of Pulaski county ever made a deed to Stevens for the lands in question; but, on the contrary, the record of the chancery court shows that the lands, purchased by Stevens, were redeemed by Mrs. Ryan, and the certificates of purchase transferred to her by the written assignment of Stevens.

The statute under which the sale of Mrs. Ryan's lands was made, does not expressly require the owner of lands or town lots sold, to entitle her to redeem the same, to pay to the purchaser any taxes paid by him on such lands subsequent to his purchase, and before the redemption thereof. The purchaser, in such a case, if he has any remedy, is remitted to an action at law against the party for whose use and benefit he may have

TERM, 1870.] Hanger & Co. v. Keating, adm'r. etc.

paid the taxes, subsequent to the purchase and before the redemption.

We think the chancery court properly dismissed the complainant's bill for want of equity.

The judgment of the court below is, therefore, affirmed.

HANGER & Co. v. KEATING, Adin'r. etc.

JURIBDICTIOX-Prohibition. Where there is no final judgment, no appeal

will lie. Prohibition is the only remedy before determination, where courts are proceeding without jurisdiction.

Appeal from Pulaski Circuit Court.

Hon. John WHYTOCK, Circuit Judge.

Garland & Nash, for appellants.

Watkins & Rose, for appellee.

HARRISON, J.

Thomas D. Keating, administrator of Milus Killian, de ceased, applied, by petition, in the circuit court of Pulaski county, for an order to sell the lands belonging to his intes. tate's estate, for the payment of its debts.

Peter Hanger & Co., and Fletcher & Hotze, creditors of the estate, as they alleged, appeared in court and demurred to the petition upon the ground that the subject thereof, and the power to make such order, was not within the jurisdiction of the court. The court overruled the demurrer and made an

City of Little Rock, ex parte.

(DECEMBER

order that all persons interested in the estate should be noti. fied to show cause, on the first day of the next term of the court, why the prayer of the petitioner should not be granted. Peter langer & Co. and Fletcher & Hotze excepted to the rulings of the court, and without further proceedings being had, prayed an appeal to this court.

It is manifest that there was no final judgment, or order, in the proceeding from which an appeal might be taken. If the court was proceeding in a matter not within its jurisdiction, a prohibition was the only remedy which could be resorted to, before the determination of such proceeding. The case must therefore be stricken from the docket.

CITY OF LITTLE Rock, ex parte.

JURISDICTIONProhibition.—Prohibition will not lie to an inferior court, in

a cause arising out of its jurisdiction, until that matter has been pleaded

in the original court and the plea refused. The circuit court will not be presumed to take cognizance of matters not

within its jurisdiction.

Petition for Prohibition.

T. D. W'. Yonley, Montgomery & Warwick, for petitioner.

The power of amotion is incident to every corporation, 2 Kent. Com. 348-9; Angell of Ames on Corp. sec. 408-9, 27, 32; 5 Ind. 779; Grant on Corp. p. 240, and is conferred by statute in this State. See page 273, New Digest, sec. 67, Law of Mun. Corp. The city council is not a court and the provisions of the Code (sec. 521,) do not apply to it.

TERM, 1870.]

City of Little Rock, ex parte.

WILSHIRE, C. J.

On a former day of the present term the city council of the city of Little Rock presented to this court their petition, suggesting and informing us that one II. II. Pugh had applied to the Pulaski circuit court for a writ of mandamus, commanding the members of the said city council to refrain from further proceeding in the cause of impeachment instituted in said council for the removal of said II. II. Pugh, as the solicitor of said city, upon charges preferred against him, and also commanding said city council to dismiss said proceedings against said Pugh.

This court, in a very early case, announced the doctrine that at common law the rule was that no prohibition lay to an inferior court, in a cause arising out of its jurisdiction, until that matter had been pleaded in the original court, and the plea refused. Williams, ex parte, 4 Ark., 540; Blackburn, er parte 5 Ark., 22.

The same doctrine was reiterated and re-affirmed in the case of McMeechen et al., ex parte, 12 Ark., 73. The suggestion in this cause fails to show that the petitioners have made any effort to defeat the issuance of the mandamus by the circuit court, by plea to the jurisdiction of that court, or otherwise.

This court will not presume that the circuit court will take cognizance of matters not within its jurisdiction.

There being no allegation in the suggestion that the petitioners have sought, by plea or otherwise, to object to the jurisdiction of the circuit court, and prevent the issuance of the mandamus; that the plea or objection was overruled and refused, the application here for a rule to show cause why the writ of prohibition should not issue must be refused.

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EJECTMENT-Swamp and overflowed lands.-An entry of lands with the

register of the United States land office, in accordance with the law authorizing him to act, and the receipt of the purchase money by the proper officer, although no patent be issued, vests such title and legal interest, as enables the purchaser to maintain ejectment; and a subsequent grant by the United States, of such land, under an act entitled "An act to enable the State of Arkansas, and other States, to reclaim the swamp lands within their limits, approved September 28, A. D. 1850, conveys no right or title, as against the original purchaser, from the United States to the State, or its vendees, further than a naked legal title in trust for

the party holding the prior and more equitable title. PLEADING-Practice.- Where, under the Code of Practice, an equitable de

fense may be made to a suit at law, and the case is not transferred to the equitable side of the docket, the issue made on such defense is not to be disregarded, and such issue must be disposed of by the court according

to the principles involved, either of law or equity. EQUITABLE TITLE-When pleaded-An equitable title, in an action on a

United States land patent, can be pleaded in a state court, when permit

ted by the law of the State. PLEASElection of-Parties can only be required to elect between pleas pre

senting the same issue and both well pleaded.

Appeal from

Jefferson

Circuit Court.

Hon. HIERRY B. Morse, Circuit Judge.

Waikins . Rose, for appellants.

We submit:

1. Action is barred by Statute of Limitation. Gould's Dig. 1). -462, sec. 22. Ib. p. 739, sec. 2.

2. Suit of 1862 is a nullity. Const. 1868, art. 1, sec. 25. 3. Refusal to allow first plea reinstated, was error.

4. Refusal to declare law propositions of appellants, was error.

As to third proposition, şce Cowper, 473.
There was nothing dubious in appellant's equity. 2 Johnson's

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