Appellant, the Arkansas State Game and Fish Commission hereinafter referred to as Commission, filed this action (Cause No. 3440), to quiet its title to the NE % Sec. 28, T. 5 N., R. 21 W. against Parker Parker. It based its title upon a warranty deed from Betsy Altman dated March 3, 1953, recorded in Deed Book 73 at page 474 in the Dardanelle District of Yell County. Other allegations in the complaint are as follows:
“That notwithstanding the above allegations the sheriff and collector of Yell County, Arkansas, caused the said described property to be sold to the defendant herein, Parker Parker, at a tax sale on November 8, 1954, and that subsequent to the said sale, the Clerk of the County Court of Yell County, Arkansas, caused a clerk’s deed of tax sale to be delivered to the defendant herein, Parker Parker, dated January 15, 1957, and filed for record April 15, 1957, at 10:00 a.m.
That on or about the 17th day of September, 1959, the Chancery Court of Yell County, Arkansas, Dardanelle District, entered a decree confirming the title to the said lands described herein to the defendant herein, Parker Parker, said decree being found in Chancery Record H at Page 303 of the Chancery Records of Yell County, Arkansas, Dardanelle District.
That the said decree and tax title issued pursuant thereto were null and void and of no effect since the property purported to be delinquent and confirmed was legally and equitably owned by the State of Arkansas for the use and benefit of the Arkansas Game and Fish Commission.
That Ark. Stat. Ann. § 10-214 provides that no tax title shall be valid or binding against the equitable or legal interests of this State in or to any real estate whatever, but such tax titles are and shall be void, so far as the same shall conflict with the interests of the State, and shall be treated and considered as null and void in both law and equity in all courts of the State.”
On motion of Parker the case of Parker v. Certain Lands, No. 3101 in the Chancery Court of Yell County, Dardanelle District, was consolidated with the action filed by the Commission. In Cause No. 3101 Parker sought to quiet title to numerous tracts of land purchased at tax sales over a number of years. The service obtained there was by newspaper publication. After publication of the notice the Commission voluntarily appeared and claimed four parcels but made no claim to the tract here involved. As a result Parker’s complaint in Cause 3101 was dismissed as to those four parcels, but a decree was entered confirming Parker’s title to the NE¼ Sec. 28, T. 5 N., R. 21 W., here involved.
Cause 3440 was submitted to the Chancellor upon motions by both parties for summary judgment. From a decree holding that the commission was estopped by the judgment in Cause 3101 from proceeding against the lands here involved, the Commission appeals. We agree with the trial court.
Our Constitution (1874) Art. 5, § 20 provides: “The State of Arkansas shall never be made defendant in any of her courts.” In St. Louis Southwestern Ry Co. v. Yates, (CCA Ark. 1927), 23 F. 2d 283, the foregoing provision was construed to mean, “[Tjhat the state cannot be compelled to defend in any action in a court of that state, but that the state may voluntarily appear and ask to be made a party in any action either in the state or the federal courts.”
In Arkansas State Highway Commission v. Partain, 193 Ark. 803, 103 S. W. 2d 53 (1937), in construing the same provision, we said:
“. . . In contending, however, that in no case the courts render a judgment against the state, counsel misconceive the effect and purpose of the constitutional provision, supra. The prohibition is limited to a denial of any one to sue the state in her own courts. The state, however, by virtue of its sovereignty, may become a suitor in her own courts and, when she has done so, she has the same rights and is subject to like restrictions as a private suitor and must submit to, and abide by, the result. Wilson v. Parkinson, 157 Ark. 69, 247 S. W. 774;...”
In King v. Harris, 134 Ark. 337, 203 S. W. 847 (1910), King filed an action as the only heir of Smith to recover possession of land from Harris and Fullerton. The prosecuting attorney appeared and defended on the basis that the lands had escheated to the state and requested that the cause be dismissed as an action against the state. In reversing the trial court’s dismissal of the complaint, we said:
“. . . The State has in effect become a party plaintiff to this litigation and the court should not thereafter have dismissed the complaint for the reason assigned, i. e., that it was a suit against the state. ...”
The cases from other jurisdictions are to the same effect. See Stoner v. Rice, 121 Ind. 51, 22 N. E. 968 (1889), and Clark v. Barnard, 108 U. S. 436, 27 L Ed. 780, 2 S. Ct. 878 (1883).
Therefore, as we understand the law, the Commission as an agency of the State was under no obligation to appear and defend in Cause No. 3101, but when it voluntarily did so it became bound by the decree entered therein like any other private suitor. Consequently, we agree with the Chancellor that the decree in Cause No. 3101 is conclusive of the issues raised by the Commission’s complaint here in Cause No. 3440.
Affirmed.
Harris, C. J., and Brown and Fogleman, JJ., dissent.