Alexander v. Capps

• Decision Date: 30 October 1911
• Citation: 140 S.W. 722,100 Ark. 488
• Parties: ALEXANDER v. CAPPS
• Court: Arkansas Supreme Court

140 S.W. 722

100 Ark. 488

ALEXANDER v. CAPPS

Supreme Court of Arkansas

October 30, 1911

Appeal from Boone Chancery Court; T. Haden Humphreys, Chancellor affirmed.

STATEMENT BY THE COURT.

The appellant seeks to confirm a tax title to a certain tract of land in Boone County, Arkansas. He alleges that the land

was duly sold on the 12th day of June, 1905, for nonpayment of the taxes for 1904, and that he purchased same; that there was no redemption, and the county clerk of Boone County on the 14th day of June, 1907, executed to him a deed for the land; that there was no person in possession of the land claiming adverse title, the same being vacant and unoccupied that he had paid the taxes for the three years before filing his petition, and that two payments had been since the expiration of the right of redemption; that he had given notice as the law requires of his petition of confirmation. He prayed that his title be confirmed.

The appellees resist the confirmation, and in their amended answer set up that they were the joint owners, and deny that appellant had any title. They set up that the tax title claimed by appellant was void for various reasons, and, among them, "that the lands were sold to E. S. Alexander at a pretended sale on June 12, 1905, and that they were sold for a five-mill school tax at that time to the plaintiff (appellant) for the year 1904, and that no school tax was levied for that year by the county court of Boone County Arkansas, for the October term of said court."

Appellees exhibited with their answer a copy of redemption certificate issued on September 5, 1907, showing that appellee M. E Guffey had paid the taxes on the land for the years 1905 and 1906. Appellees alleged that they had tendered appellant all the back taxes and costs with ten per cent. interest per annum, and that appellant refused to accept.

The appellant read in evidence the clerk's tax deed, which was in the form prescribed by the statute, describing the land and reciting that it was sold on the second Monday in June, 1905, for the taxes of 1904; that there had been no redemption, and conveying the land to appellant. Appellant also introduced in evidence the tax receipts for the years 1906, 1907, 1908, and 1909, and affidavits showing that there was no one in possession holding adversely to appellant.

Appellees introduced in evidence an agreed statement of facts, showing the following:

That the lands described in plaintiff's petition for confirmation were exposed for sale on the 12th day of June 1905, by the tax collector of Boone County for the taxes for the year 1904; that amongst other things there was included in the amount of taxes for which said land was sold a five-mill school tax, being 2 1/2 mills for general school purposes and 2 1/2 mills for building purposes. Said land is in school district No. 97, and was assessed in name of M. E. Guffey for year 1904. That there is attached to and made a part of this agreed statement of facts a certified copy from the records of the levying court of Boone County for the October, 1904, term, showing the report of the committee appointed by the judge to report on the school tax voted by the various districts; and that the names signed to said report are the persons constituting the committee so appointed. That there is no further record with reference to the school tax levy in the record of the proceedings of said levying court.

The report of the committee above mentioned showed that in May, 1904, in School District 97, five mills were voted for school purposes. Appellees also introduced in evidence a warranty deed from Gresham P. Hoyt to M. E. Guffey, one of the appellees, for the land in controversy.

Appellant in rebuttal introduced depositions of members of the levying court of Boone County, Arkansas, showing that the levying court for the October term, 1904, appointed a committee to ascertain the amount of school taxes voted in each school district for the year 1904, and the committee reported that a tax of 2 1/2 mills for school purposes and 2 1/2 mills for building purposes had been voted in District 97; that the levying court, as was its custom, proceeded to levy the tax reported by the committee upon the taxable property in the various school districts, and that a tax of five mills was levied in school District 97. "To make the levy," as the witnesses testified, "it was moved and seconded that the amount of tax as shown by the report of the committee be levied on the taxable property of the various school districts of the county; motion carried." It was shown "that the report of the committee would not have been spread upon the records of the court if the amounts therein mentioned had not been levied by action of the levying court." The court found as follows:

That the land described in the petition of plaintiff, to-wit: The N.W. 1/4 of the N.W. 1/4, Sec. 20, Twp. 21, Rg. 20, in Boone County, Arkansas, was assessed for taxes in the year 1904 in the name of M. E. Guffey; that said land was returned delinquent, and was on the 12th day of June, 1905, sold by the collector of revenue to E. S. Alexander, and that said sale was in form regular. That at the expiration of two years from the date of said sale, no one having applied to redeem said land, the clerk executed his proper deed to said land to said E. S. Alexander, and the said E. S. Alexander has paid the taxes for three consecutive years, to-wit: 1907, 1908, 1909, two such payments having been made since the time of redemption expired. That said petitioner had published proper notice of his intended application for confirmation of said tax sale in the Harrison Republican, a weekly newspaper published in Boone County, and having a bona fide circulation therein, for six weeks, the first publication being the 2d day of June, 1909, the last one being the 14th day of July, 1909, and more than twenty days before the first day of the present term of this court, in manner and form required by law. That a portion of the tax so returned delinquent upon said land, and for which said sale was made, was a 5-mill school tax. That no levy of a school tax for the said year 1904 was properly made by the levying court of Boone County, and that said tax sale was and is void. And that the defendant, M. E. Guffey, has sufficient interest in said land to contest the confirmation of said tax sale.

Upon these findings the court entered a judgment denying the prayer of appellant, and in favor of appellees for costs.

Judgment affirmed.

E. S. Alexander, pro se.

1. The one deed from Hoyt to M. E. Guffey is not a sufficient showing of interest in the appellees to entitle them to be made parties to this proceeding. They should trace a chain of title back to Government or to a common source. "A deed, other than from the Government, is not of itself alone evidence of title." 64 Ark. 100, 103; 72 Ark. 65; 10 Am. & Eng. Enc. of L., (2 ed.) 484; 236 Ill. 450; Id. 169; 86 N.E. 116; Abbott's Trial Evidence, 891; 91 S.W. 336; Kirby's Dig., § 7105.

2. Appellees are estopped to contest the validity of the tax sale. Having in their first answer rested their right to intervene and contest the confirmation of appellant's title solely on the ground that they had made a due effort to redeem, they will not be permitted by an amendment to contest the validity of the tax sale. The positions are inconsistent. 71 Ark. 121; 52 Ark. 145. Moreover, the validity of a tax levy can not be attacked after two years from date of sale. Kirby's Dig., § 7114; 46 Ark. 107.

3. The tax sale was valid. The clerk's tax deed is prima facie evidence of everything necessary to constitute a valid title in appellant. Kirby's Dig., § 7104; 81 Ark. 325; 59 Ark. 209.

If appellees' claim that the tax levy was not properly recorded was true, it would be immaterial, because the validity of a judgment is not affected by failure to enter it of record. 57 Ark. 187; 59 Ark. 592; 69 Ark. 51. But the record of proceedings of the levying court shows not only that it made the school tax levy, but also exactly what that levy was. The levying court having ascertained the facts as set out in the school committee's report, there was no further discretion on the part of the levying court which it could exercise, but the law imperatively required it to make the levy in accordance with the facts. Kirby's Dig., §§ 7678, 7594, 7595; 1 Cooley on Taxation, 581, 582.

There is here no "entire omission to * * * levy the taxes," as required by the statute, Kirby's Dig., § 7105, to be proved, in order to sustain appellees' contention.

W. F. Pace and Troy Pace for appellees.

1. There is a sufficient showing of interest to entitle appellees to oppose confirmation. Kirby's Dig. § 671; 71 Ark. 211; 74 Ark. 578.

2. Appellees are not estopped by their pleadings. There is no allegation that they are entitled to redeem from the sale, nor prayer that they be permitted to do so.

3. The sale was invalid because no school tax was properly levied. Kirby's Dig. §§ 1496, 1498, 1499, 7590-7593, 7594, 7595; 33 Ark. 721; 32 Ark. 131; 29 Ark. 340; 42 Ark. 100. The recitals of the tax deed, while taken as prima facie true, are not conclusive, and may be disproved by competent evidence. 21 Ark. 378; 30 Ark. 732; Id. 278; Id. 101; 21 Ark. 145.

4. Appellant did not by demurrer or by motion to strike raise the question in the lower court that the validity of a tax levy can not be attacked after two years from date of sale, and will not be permitted to raise it here; but the statute, Kirby's Dig. § 7114, does not cut off any meritorious defense to a tax deed. 53 Ark. 204; 46 Ark. 96; 32 Ark. 131; 55 Ark. 192.

OPINION

WOOD, J., (after stating the facts).

First The statute provides that: "In case any person or...