Griffith v. Sebastian County.

The plaintiffs further state the county seat was always at Greenwood, and all of the acts of the defendant's court and of the said commissioners were nullities, and the selection of said land for the site of a court house was unauthorized and contrary to law, and defendant acquired no title to said land under said deed. That the county seat of said county has never been located at Fort Smith and the defendant has never had lawful power or authority to erect and occupy a court house npon said lots, and said county has no right or power to acquire and hold real estate except for purposes expressly authorized by law and necessary for carrying on its business, and the conveyance aforesaid from these plaintiffs passed no title to the defendant county.

That said lots have never been nor ever can be used for the site of a court house for said defendant, under the Constitution of the State of Arkansas; for by said Constitution, adopted in 1874, the defendant county is permanently divided into two districts, each exercising all the powers, privileges and immunities of separate and distinct counties.

That the said conveyance by the plaintiffs to the defendant is null and void because the plaintiffs were induced to execute the same by the false and fraudulent representations of defendant and her agents and officers upon which they relied; because it was well understood that the sole purpose for which said conveyance was made was for a site upon which to erect a court house for the defendant county, which the defendant could not then or at any subsequent time lawfully do.

And they further allege that said deed is a nullity because the defendant had no power under the Constitution and laws of the State of Arkansas to accept said deed, or to acquire. title to real estate except as before stated.

The plaintiffs say that they have frequently asked the defendant to surrender said property to them and to reconvey the same as in equity and good conscience ought to be done,

Griffith v. Sebastian County.

and the defendant, through her officers, has refused to accede to such reasonable request.

That B. J. H. Gaines, as Judge of the County Court of said. county, has advertised said property for sale at public auction on first Monday in September, 1885, and has said property in his possession, claiming to hold and dispose of the same for the use and benefit of said county of Sebastian.

That the acts and conduct of said defendant, B. J. H. Gaines, in claiming said property, and attempting to sell the same as aforesaid, tend to the manifest injury of the plaintiff.

That under the act of February 27, 1879, all laws declaring counties to be corporations, and authorizing them to be sued were repealed, and said defendant, Gaines, as Judge of the County Court of said defendant, and as its agent, is intermeddling with said property, claiming to hold the same and the right to dispose thereof as aforesaid under said deed, and by no other right or authority, he claiming the said deed conveyed to said defendant county a good and valid title.

And if, under the provisions of the act aforesaid, the defendant cannot be sued in this action in this court, then the plaintiff is entirely without remedy, because there is no County Court of Sebastian county which has jurisdiction to act in these premises as contemplated by said act.

Whereupon the plaintiffs pray judgment:

I. That said deed of conveyance from plaintiffs to the defendant be declared null and void, and the same be cancelled, and the title to said property be declared to be in the plaintiffs, Elizabeth P., the same as if no such deed had ever been executed.

2. That the defendant, her agents, attorneys and officers be forever enjoined and restrained from selling or attempting to sell, or in any wise interfering with said property, and that

Griffith v. Sebastian County.

they have such other relief as they are entitled to in the premises.

The defendants demurred for the following causes:

I. Because the court has no jurisdiction of the persons of、 the defendants, or either of them, or the subject matter of the action.

2. Because the complaint does not state facts sufficient to constitute a cause of action.

3. Because under the laws of this State, no authority is conferred whereby a county may sue or be sued as such.

The court sustained the second ground of demurrer and dismissed the bill.

The act of February 27, 1879, expressly repealed all laws 1. COUNTIES: Act prohibiting declaring counties to be corporations and prohibited suits suits against. against them elsewhere than in the County Court. As, however, the County Court has no equity jurisdiction, the act cannot apply to causes of action like this, which had already accrued; for this would deprive the parties of all remedy.

This being in effect a suit for the recovery of lands, Mrs. Griffith is not barred by the statute of limitations, because she has all the time been a married woman. Hershy v. Latham, 42 Ark., 305.

The allegations of fraudulent representations by the agents and officers of the county may be safely dismissed. The county acted in good faith, as is manifested by its proceeding to erect the court house on the donated site, until it was decided in Patterson v. Temple, 27 Ark., 202, that the county seat still remained at Greenwood. The conveyance was made under a misapprehension, common to both parties, that Fort Smith was now the county seat. Mrs. Griffith has parted with her property without receiving any equivalent, and without the possibility of receiving any. Her object was to enhance the value of her adjacent lands by securing the location of the

Griffith v. Sebastian County.

public buildings of the county on this block. This object, without any fault imputable to either of the parties, was then and has ever since remained impossible of accomplishment. The deed was founded on the assumption that the county seat had been removed to Fort Smith. The result is the same as if the deed had been expressly conditioned on the existence of the supposed state of facts. The deed is thus nullified in its inception, by the non-existence of a material fact, which constituted at once its inducement and the basis of their negotiations. The mistake was such as to exclude real consent, and so the minds of the parties never met. Wald's Pollock on Contracts, 2d Am. ed., 405, 412, 441; Bishop on Contracts, enlarged edition, secs. 70, 587, 693, 698; Kerr on Fraud and Mistake, Amer. ed., 416; Cooper v. Phibbs, L. R., 2 H. L., 149; Hitchcock v. Giddings, 4 Price, 135; Irick v. Fulton's Exrs., 3 Gratt., 193; Ketchum v. Catlin, 21 Vt., 191.

But it is contended that the mistake was a mistake of law, involving the construction of an act of the legislature, which had undertaken to make valid the election under which the removal had been had, and the validity of certain orders of the County Court, declaring the result and effect of that election.

In Smith's Principles of Equity, 180, it is said: "It is quite conceivable that the two parties to an agreement may both be laboring under a false impression as to a matter of law, the effect of which would be to make the agreement something entirely different from that which they intended. In such a case there is indeed no contract at all, the mutual agreement being different in substance from that which legally springs from their acts. It can scarcely be supposed that the law would in these circumstances enforce an agreement which was in truth never made by the parties at all. The question here is not whether a mistake of law will avoid a contract, but whether there ever was a contract."

But we do not regard the location of a county seat of a

Griffith v. Sebastian County.

county as a question of law. At least there is such a blending or combination of law and fact as to take it out of the rule denying relief against legal mistakes. A fact is not less a fact though it be the offspring of the law. Bishop on Contracts, sec. 465. Thus, in Craig v. Grant, 6 Mich., 447, the organization of a certain county, which depended on the result of a popular election, was held, even in a collateral proceeding, to be a question of fact. So, also, in Indianapolis v. McAvoy, 86 Ind., 587, where the question was, whether certain lots were within the limits of a city, and this turned upon the validity or invalidity of an ordinance proposing to annex them. In Gibson v. Pelkie, 37 Mich., 380, a contract had been made for the collection of a supposed judgment, which proved to be so defective as to be void. The judgment was of course a matter of record; yet the court decided that there was no subject matter upon which the contract could operate.

Again, in Heacock v. Fly, 14 Penn. St., 540, a conveyance was made to a trustee for the sole and separate use of a married woman, and she executed a bond and mortgage for the purchase money. As the bond and mortgage were void at law, a court of equity rescinded the agreement. Here the conveyance was founded in a mistake of law, as to the capacity of a married woman to bind herself. So, in Gross v. Leber, 47 Penn. St., 520, a femme sole, as guardian, had trust funds in possession and afterwards conveyed her real estate to a trustee to manage for her use and benefit, paying over to her the net proceeds. The trustee, after accepting the conveyance, died, and his sons, the administrators, in mistake of their duty as such, executed their bond to the ward for the amount due him by his guardian. The bond was relieved against in equity. Compare also Miles v. Stevens, 3 Penn. St., 21.

In King v. Doolittle, 1 Head, 77, the plaintiffs had made their promissory notes for the purchase of a banking institution. The bank charter contained the reservation of a right