1. The issue, as made by the -complaint and answer and the proof that had been taken at the time the motion to transfer to the law court was made, presented a cause for the law court. Moreover, appellant did not except to the ruling of the court transferring the cause to .the law court; and, as this court had jurisdiction under the issues presented, no error is shown in this-respect.
The answer and proof showed, when the motion to transfer was passed on, that appellant was in possession of the lands in suit. Appellant did not insist on the demurrer nor motion to dismiss in the court below. He answered and went to trial on the merits, and he can not complain here. There is no error presented in the first and second grounds of the motion for new trial.
2. The complaint with sufficient definiteness set up that the land in controversy “had been granted to the State of Arkansas by the United States as swamp and overflowed lands.” A duplicate of the patents is proffered with the complaint, and filed as exhibits D and E. The answer in response to these allegations says that defendant is “not advised.that they (the lands) were granted to the State as swamp and overflowed lands,” and that defendant has no information “that*the lands were patented to the State as swamp and overflowed lands.” This presented no denial of the allegations of the complaint that these lands were duly granted to the State by the United States Government as swamp and overflowed lands. Haggart v. Ranney, 73 Ark. 344.
3. The third ground of the motion for new trial assigns as error the admission of the certificate of the State Land Commissioner of the sale by the State to Craig and Clopton of the land in controversy, without proof that the land had been confirmed to" the State by the United States as swamp and overflowed land. The allegations of the complaint as to this, being sufficient and not denied, must be taken as true, and there was no error presented by this assignment:
’True, appellant called for the patents to Craig and Clopton in the answer, but he went to trial without insisting upon a ruling on his motion to produce them; and when the certificate of the Land Commissioner was offered as evidence, appellant did not object to same, nor move afterwards to exclude it on the ground that it was not the best evidence, and not competent as secondary evidence until (the proper foundation had been laid for its introduction by a showing that the patents to Craig and Clopton were lost, destroyed, or otherwise beyond the power of appellees to produce them. It thus appears that appellant in the court below did not avail .himself of the rule applicable in such cases as declared by this court in Driver v. Evans, 47 Ark. 297; Boynton v. Ashabranner, 75 Ark. 415, and Carpenter v. Dressler, 76 Ark. 400.
4. Nothing is presented for our consideration in the fourth ground of the motion for new trial, which is as follows: “That the court erred in giving the following instructions for appellees, over objections of this appellant, numbered 3, 5, 7, 8 and 10.” The bill of exceptions recites- that “the court gave, over the objections of defendant, the following instructions, “setting them out and numbering them consecutively 3, 5. 7, 8 and 10.” The objection to the instructions given was in gross, and at least one of the instructions was correct.
5. The fifth ground of the motion, for new trial is “that the court erred in refusing to give instructions numbered 4 and 5 asked by appellant.” Number 5 is as follows: “5. The jury are instructed that under no circumstances presented in this case can they find a verdict for plaintiffs for possession of the land involved in this suit.” Request for instruction number 5 should have been granted. It appeared that appellant Wade was in possession of the land claimed by him under a donation deed good on its face, based on a sale of forfeited lands to the State October 25, 1882. It is contended by appellees that this sale was void for the reason that the decree of the Chicot Chancery Court, rendered at an adjourned term thereof beginning on the 25th day of September, 1882, ordering the lands re-assessed and sold was void. Brit this contention is riot established by the proof. We have searched the records in vain to find when this land was forfeited, and how it was sold. If sold under a decree of the Chicot Chancery Court, at an adjourned term beginning September 25, 1882, which was void because rendered by a special judge when the regular judge of the circuit was at the same time holding court elsewhere, the record nowhere shows it. True, we find among the papers what purports to be an original bill of exceptions in die case of James M. Goza et al. v. H. S. Caldwell et al., pending in the Chicot Circuit Court, in which it appears that James M. Goza et al., the plaintiffs, appealed from a judgment in fhvor of certain defendants in that suit, towit: Asbury Moses, Jane Jones, S. B. Brown, James Brown and Henry Love, and that the bill of exceptions sets forth the decree of the Chicot Chancery Court at the adjourned term beginning September 25, 1882, which appellee contends renders the sale and donation deed under which appellant claims title herein void. But that bill of exceptidns, even if it disclosed what appellee claims for it, was never embodied in the transcript of this record.
The appeal by appellees here against the parties named in that bill of exceptions, and in whose favor judgment was rendered in the court below, was never perfected by the filing of the transcript in this court, as the law requires. Appellees prayed a cross-appeal in this case December 9, 1905. But this cross-appeal only brings up questions decided in favor of appellant or any co-appellee against the appellee praying cross-appeal. Section 1225, Kirby’s Digest. And we can only look to the transcript of the record in this court to determine what those questions are. Now, the parties who were joined with Wade as defendants in the court below, and in whose favor judgment was rendered, have not appealed, and Wade’s appeal brings up no question against them. They are not co-appellees with the appellees, Goza and Kimberlin. They are therefore not parties to this record. So we find nothing in this record to impeach the donation deed of Wade. The court erred, therefore, in not granting appellant’s request for instruction number five.
6. The giving of this would have rendered the granting of requests asked by him unnecessary. But, in view of a new trial in which the same questions may be raised, it is proper to say that we find no error in the refusal of the court to grant appellant’s requests for instructions two and six.
The court properly submitted the questions embraced in these instructions in those numbered two and six which were given. It was a question for the jury, under the evidence, as to whether or not the title to the land in controversy had passed out of Aaron Goza by the proceedings in bankruptcy. If the lands for any reason were not disposed of b)' the referee in bankruptcy, such title as Goza had at the beginning of such proceedings reverted to him upon their termination. “Where a surplus remains in the hands of the assigned or trustee, after the proceeding has terminated, and the debts proved, if any, have all been paid, such surplus reverts to the bankrupt.” In equity he would be the owner of such real estate as might remain, even if a decree were necessary to revest title in him. 16 Am. & Eng. Enc. Law, 699, 700, notes. The court did not err in adding the clause, “or that the lands were not disposed of by the referee in the administration of the bankrupt’s estate,” to appellant’s request for instruction two, and giving it as thus modified.
Likewise, the court properly modified appellant’s request for instruction number six by making it show that the statute of limitations would be reckoned from the date of the deeds, where the parties were then in possession claiming under them, till the beginning of the suit against them for possession. If they had not acquired title under their donation deed by the two years’ statute of'limitations prior to the institution of the suit for possession, they could not acquire it after that time, and while such suits were pending. Of request numbered four by appellant and refused, it suffices to say that it is impossible to forecast what would be a proper instruction upon the question of taxes, interest, improvements and rents. For we can not anticipate what the proof on another trial may develop as to those. But nearly all questions that can arise concerning these matters have already been passed upon by this court in some recent cases. See Bender v. Bean, 52 Ark. 132; McGann v. Smith, 65 Ark. 305; Cowley v. Spradlin, 77 Ark. 190; Cowley v. Thompson, 77 Ark. 186.
For the error of the court in refusing to grant request of appellant for instruction number five, the judgment is reversed, and the cause is remanded for new trial.