ON REHEARING.
Hire, C. J.This case was decided at this term, and is yet within control of the court, and the court has concluded that it erred in its ruling on a question of evidence, and of its own motion has decided to recall the mandate and insert this additional opinion therein for the guidance of the chancery court, and to modify the decree heretofore entered so as to remand for further proceedings, instead of remanding with peremptory directions to enter judgment for appellant.
The appellant, to prove his chain of title, offered a duly certified transcript from the land office showing the record of the issuance of a patent to Cross. The appellee objected to its introduction on the ground that it was not the best evidence, the loss of the original not having been proved. The court overruled this objection, and the appellee duly excepted to the ruling. The court decided the case in favor of the appellee, Ashabranner, upon a totally different proposition. Upon the hearing in this court appellee insisted that its exception was well taken, and appellant’s title not properly proved, and on the whole record the case ought to be affirmed, even if the court did not sustain his other contentions. The court held that the transcript was original evidence, and properly admitted. Two other cases have come here where the same point has been fully discussed, and the court has concluded that it erred in this case in holding the certified copy of the transcript to be original evidence and sufficient to prove the transfer, without laying proper foundation for its introduction as secondary evidence. The question is fully discussed in Carpenter v. Dressler, 76 Ark.—, and the opinion therein will be made a part hereof in the mandate.
It does not follow, from this change of the opinion of the court on this question, that the case should be affirmed. The chancellor held the evidence competent, and based his adverse decision on other grounds, and thereby did not give the appellant an opportunity to render this evidence competent by laying the proper foundation then, or suffering a nonsuit and'bringing his action anew, wherein he could have his evidence in proper shape to be admissible. The practice contemplates that exceptions to depositions and documentary evidence be determined before final submission. See sections 2743, 3190, Kirby’s Digest. This enables a party to nonsuit when he has mistaken the competency of his evidence and otherwise protect his rights. It would be manifestly unjust and contrary to the better practice to permit a defeat in an appellate court on an exception to evidence ruled in favor of the appellant, thereby throwing him off his guard and preventing him from properly protecting his rights when the decision against him is on totally different grounds. Such a case is not one for the application of the rule to affirm when on the whole record the judgment is right, although wrong reasons are given for it, but rather is a case calling for a remand for further proceedings wherein it is shown that the case is not fully develparty as to his remedy when the interests of justice require the whole case to be more fully developed.
Supplemental opinion delivered November 11, 1905.The judgment is modified to the extent that the cause is reversed and remanded for further proceedings not inconsistent herewith.
McCuucoch, J.This case was decided by the court, and an opinion by the Chief Justice delivered on May 27, 1905, reversing and remanding it with directions to the chancery court to enter a decree in favor of appellants for the lands in controversy. One of the controlling points in that decision was the admissibility of a transcript of the record of the Commissioner of State Lands as primary evidence of the issuance of a patent, and the views then expressed holding the same to be admissible resulted in a decision that appellants had sufficiently proved their title. We declined at that time to pass upon the validity of appellant’s tax title and decree of confirmation, for the reason, as expressed by the Chief Justice in the opinion, that the view taken of the case by the court rendered a discussion of these issues unnecessary. Subsequently, the ruling of the court was changed as to the admissibility of the transcript as primary' evidence of the issuance of the patent, and the mandate was recalled and amended, reversing the cause for further proceedings, so that appellants could have an opportunity either to take a nonsuit" or to complete the proof of issuance of the patent. In thus changing the ruling upon the admissibility of this evidence, we failed to take account of the change it worked in the materiality of the question of the validity of appellants' confirmed tax title. Counsel for both sides now unite in a motion that we consider and decide that question; and if it be held that appellants’ tax title or the confirmation thereof was valid, it will result in a direction to the lower court to enter a decree in their favor for the lands in controversy.
In addition to the original title, which is set forth and discussed in the former opinion, appellants claimed title to the lands under a sale made on June 12, 1884, by the collector for taxes of 1882 and 1883, and also alleged that said sale had been duly confirmed by decree o.f the chancery court of Mississippi County. It is not claimed that the tax sale conferred a valid title, but appellants introduced a certified copy of the decree of confirmation, reciting all the facts essential to a valid decree. The defendant made his answer a cross-complaint, attacking the validity of the confirmation on the alleged ground that it was procured by appellants by fraud and deception practiced upon the court rendering it. In support of -this allegation, the defendant testified that he had paid the taxes on said lands for three years and longer immediately prior to the rendition of the confirmation decree, and he filed with his deposition the tax receipts for those years. The confirmation-decree which was rendered at the January term, 1898, recited that the petitioner therein presented to the court his tax receipts showing payment of taxes for three years next preceding. Upon this testimony the chancellor found that said decree purporting to confirm the title of plaintiffs’ ancestor to said lands was procured by “fraud and deception practiced upon the court by the petitioner therein, inasmuch as petitioner had paid no taxes on the land for three years immediately preceding the application for confirmation thereof,” and canceled said confirmation decree. Does the evidence in this record warrant that conclusion of the chancellor ?
It is settled that a judgment or decree of court may be canceled on account of fraud practiced upon the court in the procurement thereof.
The relief may be granted by the court which rendered the judgment or decree (Kirby’s Digest, § 4431; Chambliss v. Reppy, 54 Ark. 539), or by a court of equity. State v. Hill, 50 Ark. 458; Scott v. Penn, 68 Ark. 492; James v. Gibson, 73 Ark. 440; Womack v. Womack, 73 Ark. 281.
But the fraud must be in the procurement of the judgment, and not merely in the original cause of action itpon which it was based. Scott v. Penn, supra; James v. Gibson, supra.
The court had the power to set aside the confirmation on proper showing that it was procured by fraud, but we do not think the proof adduced was sufficient to warrant it in this case. The defendant testified that he had paid the taxes for the three years preceding the confirmation, and exhibited his tax receipts, and it follows from that testimony that the petitioner for confirmation could not have paid the taxes for those years. But the confirmation decree recites the exhibition by the petitioner of tax receipts, and the court necessarily found before entering the decree that petitioner had paid the taxes. It is not sufficient to show now that that finding was erroneous because, in the absence of fraud, that finding is conclusive, and another trial of the question cannot be permitted. The court may have reached its conclusion upon false or incompetent testimony as to payment of taxes, yet that would not constitute grounds for reopening the question and trying it anew. In other words, it must be shown that some fraud or imposition was practiced by the petitioner or his attorney upon the court in procuring the decree, before it can be set aside. For instance, if it were affirmatively shown that the petitioner or his attorney falsely represented to the court that he had filed true copies of the tax receipts for those years with his petition and exhibited in open court the original receipts, when in fact he had no stich receipts, and had not paid the taxes for those years, and by those means induced the chancellor to pronounce the decree of confirmation, then that would constitute such a fraud in the procurement of the decree as would warrant a cancellation of it. Mere proof, however, that the taxes were paid by the defendant is not sufficient, in the absence of an affirmative showing of fraud practiced on the court. It is the payment of taxes, and not the exhibition of tax receipts, which confers jurisdiction upon the court to confirm the tax title of the petitioner, and a finding by the court in that proceeding of that jurisdictional fact is final and conclusive until the contrary be shown, and fraud be' shown to have been practiced upon the court including that finding. Any other view of the law would permit the retrial of the question whenever either party sees fit to tender the issue anew, and the final adjudications of the courts of competent jurisdiction would rest upon a slender thread.
It is also urged that the decree of confirmation is void on its face because it recites that the lands were sold for taxes on a day not authorized by law. The decree cuts off all inquiry as to the regularity and validity of the sale, and it matters not that it was a sale which appears to have been unauthorized by law. The theory rests upon the proposition that the owner of the land has in the confirmation proceedings had his day in court to contest the validity of the sale, and is barred from thereafter asserting its invalidity on any ground. The effect of the decree is not to confer title to the land, but merely to declare the sale thereof valid. •
It follows that the chancellor erred in setting aside the confirmation decree on the proof adduced, and his ruling on that question is disapproved and reversed. Inasmuch, however, as we have already reversed and remanded the cause for further proceedings, so that both parties may take further proof, if desired, we will adhere to that direction, so that additional proof may also be taken upon the question herein discussed.
The petition for modification is therefore denied, and the clerk will certify down this additional opinion for the guidance of the court in its further proceedings in the cause.