Standford vs. Wheeler, Auditor. tioner petitioned this court for a writ of mandamus directed to said auditor, commanding him, etc. We understand from the petitioner's account, that he has executed conveyances to the state of lands sold to the state for nonpayment of taxes, upon presentation of five hundred and ten certificates of purchase, as required by section 127 of the revenue act, approved March 25, 1871, and that he has recorded the same; and for which he claims compensation at the rate of five dollars for each certificate. The petitioner's counsel asserts that "under the revenue act of 1871, it is by no means certain that Standford is not entitled to five dollars for each tract of land conveyed; but that he is entitled to five dollars for each certificate, there can be no question." We have carefully examined this act, and we can find no provision whatever for the payment of five dollars for each tract conveyed. Nor can we find any provision for the payment of five dollars for each certificate of purchase issued, whether to the state or to a private person. Section 127 of the revenue act of 1871 declares that "deeds shall be made to the state for lands sold for taxes by the county clerk," etc. Nothing is said in this section, or anywhere else in the act expressly about the clerk's fees for such deeds. Section 133 provides for the execution of the proper deeds by the clerk for lands sold for taxes, to the person or persons entitled to receive the same; and that "he," the clerk, "shall be entitled to charge and receive a fee of five. dollars" therefor. If the legislature intended to include the state within the operation of the latter clause of the section just quoted (and this we are not inclined to concede), placing the state in the same category in the payment of such fees as private persons, still the petitioner is not entitled to the writ prayed for; for 28 146 66 399 Cato and wife vs. Stewart. neither his account against the state, which he presented to the auditor, nor his petition here, specifies the number of deeds he executed to the state, nor does the petitioner ask to be compensated according to the number thereof. He alleges that he conveyed the land of five hundred and ten certificates of purchase, and he asks for compensation for such conveyance at the rate of five dollars per certificate. By his showing, therefore, granting that the law is in his favor, he is not entitled to the writ. In conclusion, we will remark that the auditor would not be authorized to audit accounts against the state for the payment of such fees without an express legislative provision allowing such compensation to clerks, and without a legislative appropriation for such purpose. We are of opinion that the writ ought not to be issued. CATO and wife vs. STEWART. DEEDS: Ambiguity of, how explained. Where a deed is ambiguous as to the quantity and interest intended to be conveyed, it presents a question of law to be determined by the court, but where the locus of the property is called in question by a suggestion outside of the instrument of conveyance, it is competent to introduce parol evidence to identify it. APPEAL from Arkansas Circuit Court. Rose & Green, for appellee. STEPHENSON, J. The Catos, who are the minor children and heirs-at-law of Amos Cato, deceased, sue by their next Cato and wife vs. Stewart. friend, Edward Johnson, for the possession of certain lands in Arkansas county, described as the S.S. W. sec. 26, and S. E. S. E. sec. 27, T. 3 S., R. 6 W. The defendant interposed a general denial, and at the March term of the Arkansas circuit court, the cause went to trial, the court sitting as a jury. The plaintiffs introduced as evidence the certificate of the swamp land agent that the lands had been duly purchased from the state by their father. Mrs. Rebecca Cato testified that she was the widow of Amos Cato, deceased, and that the plaintiffs were his children and only living heirs at his death, and the lands sued for were the only lands deceased owned, at his death, in Arkansas county. D. S. Morris testified that the rental value of the lands per year was one hundred dollars. The defendant then introduced and read from the records the following order: "In the matter of the estate of Amos Cato, deceased. Now, on this day comes Rebecca Cato, by Whittemore, her attorney, and presents to the court here her petition asking the court to turn over to her the property belonging to said estate, said estate consisting of one hundred and twenty acres of land, unimproved, lying on Bayou Meto, whereupon come D. S. Morris, Robert A. Young and W. T. Wells, and, after being duly sworn as the law directs, appraised said land to be worth the sum of one hundred and fifty dollars. It is therefore ordered by the court, that said estate be and the same is hereby turned over and vested in the widow of the said Amos Cato (the said Rebecca Cato), during her life time." Defendant offered to read a deed from Rebecca Cato to Benjamin H. Nobles of the lands here sued for, but the court refused to admit the deed in evidence. Cato and wife vs. Stewart. Defendant offered to prove by Rebecca Cato that she had sold the land to Nobles, which the court refused. The plaintiffs then offered to prove by Rebecca Cato that she did not employ Whittemore to procure the order from the probate court, and that she neither desired such an order, nor knew that it had been made until the commencement of this suit, and that Whittemore was not, nor ever had been her attorney, which the court refused. The court found the following facts: That, in 1860, Amos Cato entered the land in controversy; that he is dead, and that plaintiffs are his children and only heirs at law; that Rebecca Cato, his widow, by Whittemore her attorney, made an application to the probate court, on the day of 1867, to have 120 acres of land set apart to her, under sec. 3, ch. 4 of Gould's Digest, and that said probate court did, by an order entered of record, set apart and vest in said Rebecca, widow of Amos Cato, deceased, 120 acres of land, and that it was the same land involved in this suit, and that the defendant was in possession. The court declared the law to be that "the probate court had jurisdiction of the subject matter and the parties; that said order divested the right to the possession of said land from the plaintiffs and vested it in the said Rebecca, and that the plaintiffs cannot recover." Judgment for defendant. The bill of exceptions presents a long array of objections to the rulings, finding and judgment of the court, but we deem it material to notice the following only: Did the court err in admitting in evidence the order of the probate court vesting the land in Rebecca Cato? Did it err in admitting the evidence of Rebecca Cato to prove what land her husband owned at his death, to show that the 120 acres of land mentioned in the order of the probate court was the same land involved in this suit? Cato and wife vs. Stewart. Did the court err in refusing to admit the testimony of Rebecca Cato to prove that she never employed Whittemore to procure the order from the probate court? The order of the court is based upon the 3d section of chapter 4, Gould's Digest, and is a substantial compliance with its formal requirements. It must be presumed, for the purpose of this case that, upon the filing of Rebecca Cato's petition to have the estate of her deceased husband vested in her, the court satisfied itself that said estate was of the character or class contemplated by the statute; that being true, it had no other duty to perform than to take the steps. pointed out by the law to invest the widow with the title to the property. It is insisted, secondly, that the court erred in admitting the testimony of Rebecca Cato to prove that the 120 acres of land, described in the deed, is the same land for the possession of which the suit was brought. It will be observed, by reference to the order of the probate court, that the land is somewhat loosely described. Rebecca Cato files her petition to have the property belonging to the estate of her husband vested in her "said estate, consisting of 120 acres of land unimproved, lying on Bayou Meto." "It is therefore ordered by the court that said estate be and the same is hereby turned over and vested in the widow," etc. This order was Mrs. Cato's title to the land, and is subject to the same rules of construction as a deed, so far as the words descriptive of the property are concerned. What was meant by the language used was a question of law, to be construed by the court, and presents what is termed a latent ambiguity. The quantity and interest intended to be conveyed by a deed must be determined by the court alone, but it frequently occurs, as in this case, that the locus of the property is called in question by a suggestion outside the in |