3. PRACTICE:

Griffith v. Sebastian County.

Our conclusion is that the indebtedness of J. C. to Elbert Harcrow was a sham, and that, in taking the conveyance, he was merely assisting his brother to put his property beyond the reach of his creditors. It cannot, therefore, be permitted to stand against complaining creditors. The plaintiffs have offered to submit to a resale in consideration that the property was irregularly sold for cash, and at a price greatly below its value.

The decree below is reversed and cause remanded with diIrregular sale. rections, unless the defendants, or one of them, shall immediately pay to the plaintiffs their debt, interest and costs, together with taxes, if they have paid any, to enter a decree setting aside the deed of J. C. Harcrow to Elbert Harcrow as fraudulent against the plaintiffs; also, to cancel the Sheriff's deed to the plaintiffs for the same property, and to order another sale to be conducted by a commissioner appointed for that purpose, and for further proceedings.

GRIFFITH V. SEBASTIAN COUNTY.

I.

2.

COUNTIES: Causes of action against: Application of Act of February 27, 1879.

The act of February 27, 1879, repealing all laws declaring counties to be corporations and prohibiting suits against them elsewhere than in the County Court, has no application to a cause of action in equity which had already accrued. EQUITABLE RELIEF: Against deed founded on mistake as to removal of county

seat.

A. conveyed to Sebastian county for the nominal consideration of one dollar, lots in Fort Smith to be used as a site for a court house. 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 A. was the real consideration for the deed. It was afterwards decided in Patterson v. Temple, 27 Ark., 202, that the county seat had not

Griffith v. Sebastian County.

been removed to Fort Smith, but remained at Greenwood, and A. filed a bill to cancel the deed. 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 A. was entitled to relief in equity, as compensation could be required for improvements made by the county and the collection of taxes enforced for the years during which the county held the legal title.

APPEAL from Sebastian Circuit Court, in Chancery, Fort Smith District.

R. B. RUTHERFORD, Judge.

Sol F. Clark for appellant.

The county seat was never removed from Greenwood at all (27 Ark., 217), and the acts and proceedings of the commissioners in locating the county seat on the block, and in securing the deed from the plaintiff, was done under a mistake as to their authority-under a mistake of fact as to whether the county seat was removed by the said election. Plaintiff never received one cent of consideration for the property, legal or equitable. The case comes fairly within the definition of a legal fraud, and the county held the legal title as a naked trustee for the benefit of plaintiff. Bispham Eq., pp. 254, 255; 2 Phillips, 425; 5 H. L. Cas., 627; 3 Otto, 55, 62; 4 DeG. & J., 78.

Plaintiff's equity is equally well founded on accident or mistake, a mistake of all parties concerned. Bisp. Eq., secs. 23, 183, 185, 187, 473, 474, 575, and cases cited; 1 Story Eq. Jur., sec. 142 et seq.

The case of Rogers v. Sebastian Co., 21 Ark., 440, is in no sense a precedent.

The proceedings to locate were all absolutely void. The commissioners who contracted for the lots were not agents of the county, did not represent the county, and could not bind

Griffith v. Sebastian County.

the county. Griffith's deed was never delivered to the county, for the commissioners had no authority to accept a delivery for the county. To render a conveyance valid the deed must be delivered. 3 Wash. Real Prop., 292.

See also 3 Wait's Ac. and Def., 165-6; 1 Ves., 126; 12 Simons, 463; 11 Peters, 71; 13 How. (U. S.), 66; 18 Conn., 101; 114 U. S., 239.

It is contended that counties cannot be sued since Acts 1879, p. 13. But this act was disregarded in 42 Ark., 54, and 44 Ark., 225..

The act does not apply to cases like this, over which the County Court has no jurisdiction. If it did it would take away all remedy and would be unconstitutional.

Clendening & Sandels and Rogers & Read for appellee.

I. A county cannot be sued, except through the County Court. Mansf. Dig., secs. 1065-6-7.

2. The county was authorized to accept the deed for the lots. 30 Am. Dec., 212; 41 Ind., 212; 29 Mo., 324; 50 Mo., 576; 9 Humph., 304; 98 U. S., 621.

The Statutes of Arkansas permitted land to be so taken. Gould's Dig., p. 287, secs. 4 and 5, p. 200; sec. 9, p. 296; sec. 12; 38 Ark., 463.

Admitting that there was a parol condition that the lots. were to be used only for a court house for the whole county, yet the county proceeded to carry out such condition, and the General Assembly made it impossible to comply with it. This relieved the county from the condition, and would have done so had the condition been written in the deed. 5 Cow. (N. Y.), 538; 1 Salk., 198.

The appellants seek to import a parol condition into a deed absolute, making it the consideration of the conveyance, and

Griffith v. Sebastian County.

then attempt to show failure of the consideration. This cannot be done. 21 Ark., 441; 30 Am. Dec., 212.

If there was a mistake, it was as to the existence of a law, and in such cases there is no relief in equity. 12 Pet., 32, 55, 66; 6 Johns. Chy., 166; 1 Peters, 1; 10 Pet., 137: 98 U. S., 85.

Admitting that the mistake was as to a fact, equity will not set aside a conveyance for a mistake of either law or fact (where no fraud is shown) unless the parties can be placed in statu quo. 7 Paige Chy., 137; Bisp. Eq., 254-5; 3 Otto, 62; 2 John. Chy., 51; Adam's Eq., side p. 191; Story Eq. Jur., sec. 138.

SMITH, J. The bill, filed by Griffith and wife, was as follows:

The plaintiffs for their cause of action state: That for several years prior to the 5th day of March, A. D., 1870, the said Elizabeth was the owner in her own right and seized in fee of a tract of land lying.partly in and adjacent to the city of Fort Smith, part of which has been surveyed in blocks and lots and laid off as an addition to said city, with streets and alleys, so as to conform to the plat and plan thereof.

That in the year 1868 the citizens of the county of Sebastian aforesaid petitioned the County Court thereof for an election to be ordered to remove the county seat of said county from Greenwood to Fort Smith, and the said court being satisfied that said petition was signed by one-third of the qualified electors, ordered an election under the statute in such case made and provided, to take place on the 26th day of December, A. D., 1868.

That said election was accordingly held and the County Court declared on the 12th day of January, 1869, that the proposition to remove the county seat did not receive a majority of the qualified electors of said county, and it was therefore lost.

Griffith v. Sebastian County.

But the said County Court afterwards, on the 10th day of January, 1870, declared the order aforesaid null and void, and also declared that under and by virtue of said election the county seat was removed from Greenwood to Fort Smith, and proceeded to appoint commissioners to select a site upon which to erect a court house within said city of Fort Smith.

That being desirious of enhancing the market value of their unsold town lots and adjacent land, the plaintiffs were induced to offer the lots and parcels of land hereinafter described for a site upon which to build said court house, provided the same should be selected for that purpose.

That the commissioners appointed by said County Court finally selected said lots for the court house; and the plaintiffs on the 5th day of March, A. D., 1870, conveyed to the county of Sebastian, for the nominal consideration of one dollar, which in fact was never paid to them, a block of ground, describing it and exhibiting the deed.

The plaintiffs at the time of making said deed were influenced by the assurance that the county seat of said county had been lawfully removed to Fort Smith, and by the representations of defendant's agents and commissioners, that the defendant would erect upon said land a costly and commodious court house and occupy the same.

The plaintiffs believed if the defendant should erect said buildings and locate thereon the county seat of said county, that they would be fully compensated for said lots in the enhanced value of their other town lots and lands aforesaid. That this was the sole inducement and consideration for said conveyance. That defendant county began the erection of a large court house on said lots and laid the foundation therefor, but proceeded no further because it was held by the Supreme Court of this State that all the orders declaring that the county seat had been removed from Greenwood to Fort Smith, and proceedings subsequent thereto, were null and void.