Ballard v. Hunter

• Decision Date: 11 February 1905
• Citation: 85 S.W. 252,74 Ark. 174
• Parties: BALLARD v. HUNTER
• Court: Arkansas Supreme Court

85 S.W. 252

74 Ark. 174

BALLARD v. HUNTER

Supreme Court of Arkansas

February 11, 1905

Appeal from Crittenden Chancery Court, EDWARD D. ROBERTSON Chancellor.

Affirmed.

This was originally a suit in equity by the Board of Directors of the St. Francis Levee District against the Memphis Land & Timber Company and others, to enforce a lien for levee taxes. A decree was had foreclosing the lien, and appellees, Hunter and Hackler, became purchasers. Subsequently appellants, A B. and Josephine Ballard, filed their complaint to set aside the sale. Appellees were allowed to enter their appearance as defendants. The facts are stated in the opinion.

Decree affirmed.

Randolph & Randolph and W. S. & F. L. McCain, for appellants.

The decrees and sales made are void. 8 Ark. 318; Drake, Att § 87a. Statements in the pleading, when not denied, are admitted. Sand & H. Dig. § 5761; 41 Ark. 20. Inadequacy of price to avoid a judicial sale is a circumstance to be considered. 20 Ark. 381, 652; 32 Ark. 391; 56 Ark. 544; 53 Ark. 110. Hunter and Hackler were parties, and subject to all proceedings to be had in the suit. 21 Ark. 130; 36 Ark. 591; 45 Ark. 373, 177; Kleber's Void Execution & Jud. Sales § 467; 129 U.S. 73. The appellants are entitled to the relief sought by their bill of review. 36 Ark. 591; Sand. & H. Dig. §§ 591, 4197; 123 N.Y. 440; 147 Mass. 536; 173 U.S. 555; 54 Ark. 539; 35 Ark. 331; 54 Ark. 1; 64 Ark. 126; 36 Ark. 591; 56 Ark. 544; 35 Ark. 331; 39 Ark. 347; 59 Ark. 583. The sales to Hunter were void. 2 How. 25; 1 Wall. 627; Freeman, Void Jud. Sales, 146; 6 Wall, 643, 714; 55 Ark. 562; 66 Ark. 492; Drake, Attach. § 89a; 56 Ark. 419; 55 Ark. 562; 61 Ark. 36; 101 F. 95; 115 U.S. 454; 31 Ark. 491; 55 Ark. 104; 61 Ark. 414; 60 Ark. 215, 163; 32 Ark. 131; 46 Ark. 96; 66 Ark. 539; 56 Ark. 419; 148 U.S. 171; 13 Wall, 506; 130 U.S. 177; 161 U.S. 334; 6 Wheat. 119; 55 Ark. 562; 21 Ark. 145; 30 Ark. 278; 31 Ark. 314; 29 Ark. 476, 489. Costs and fees were illegally charged and collected. 12 Ark. 60; 25 Ark. 235; 32 Ark. 45; 28 Ark. 144; 57 Ark. 487; 56 Ark. 249; 47 Ark. 442; 61 Ark. 407; 60 Ark. 194, 414. No notice was given appellants, and the sales were void. 59 Ark. 513, 536; 96 U.S. 104; 64 Ark. 258; 130 U.S. 493; 431 F. 663; 135 U.S. 85; 106 F. 474; 56 Ark. 93; 61 Ark. Peters, 471; 93 U.S. 274; 189 U.S. 433; 60 Ark. 369; 62 Ark. 439; 74 N.Y. 183; 164 U.S. 480; 9 Cranch, 144; 42 Ark. 344; 21 Ark. 367; 5 Ark. 424; 20 Ark. 114; 21 Ark. 364; 22 Ark. 118; 24 Ark. 519; 50 Ark. 189; 52 Ark. 400; 66 Ark. 3; 42 Ark. 330; 2 Black, Judg. § 794; 134 U.S. 316; 161 U.S. 251; 11 Ark. 519; 13 Ark. 507; 19 Ark. 499; 25 Ark. 52; 33 Ark. 828; 49 Ark. 410; 34 Ark. 451; 51 Ark. 281; 50 Ark. 191; 55 Ark. 30; 57 Ark. 54; 34 Ark. 682; 55 Ark. 200. The notice given was insufficient, and is not shown to have been given. Sand. & H. Dig. § 5887; 16 Ark. 46; 45 Ark. 192; 119 U.S. 185; 42 Ark. 268; 34 Ark. 399; 177 U.S. 221; 60 Ark. 372; 182 U.S. 427; 110 U.S. 536; 42 Ark. 77; 46 Ark. 333; 172 U.S. 318; 160 U.S. 393; 177 U.S. 236; 66 Ark. 492; Sand. & H. Dig. §§ 5737, 5875, 5882, 5657; 57 Ark. 229. The decree of sale of February 14, 1898, is void. 66 Ark. 490; 59 Ark. 513; 26 Ark. 454; 42 Ark. 355; 65 Ark. 142; 29 Ark. 346; 36 Ark. 456; 53 Ark. 476; 69 Ark. 591; 60 Ark. 369; 65 Ark. 142, 353, 90; 59 Ark. 483; 62 Ark. 439; 70 Ark. 207; 69 Ark. 591; 55 Ark. 562; 56 Ark. 422; 32 Ark. 345; 48 Ark. 151. Jurisdictional facts must be stated in the record. 124 U.S. 290; 40 Ark. 124; 16 How. 610; 154 U.S. 34; 139 U.S. 137; 134 U.S. 256; 54 Ark. 627; 62 Ark. 439; 54 Ark. 137; 51 Ark. 317; 52 Ark. 373. False recitals in the decrees cannot estop the appellants from attacking sales for want of jurisdiction. 176 U.S. 350; 173 U.S. 555; 70 N.Y. 253; 123 N.Y. 440; 147 Mass. 536; 33 Ark. 778; 50 Ark. 458; 54 Ark. 1, 539; 57 Ark. 352; 3 Yerger, 62; 11 Hump. 523; 1 Head, 229; 1 Black, Judg., § 366; 2 Black, Judg., § 836; 19 Wall. 61; 107 U.S. 546; 17 Ark. 203; 60 Ark. 369; 25 Ark. 60; 43 Ark. 230; 46 Ark. 96; 39 Ark. 348; 29 Ark. 47; 20 Ark. 12; 48 Ark. 151; 54 Ark. 627; 59 Ark. 483; 33 Ark. 778; 50 Ark. 458; 49 Ark. 406; 56 Ark. 187; 61 Ark. 464; 117 U.S. 266; 11 Ark. 523, 551; 10 Ark. 549; 19 Ark. 515; 44 Ark. 267; 54 Ark. 539; 50 Ark. 458.

L. P. Berry and A. B. Shafer, for appellees.

Appellant's pleading is a collateral attack upon the decree of the Crittenden Chancery Court. 130 U.S. 559; 40 Ark. 42; 49 Ark. 397; 43 Cal. 649; Freeman, Jud. § 509; 23 So. 821; 61 S.W. 542; 26 S.E. 936; 2 How. 319. The St. Francis Levee Acts are not in conflict with the Constitution of the United States. 127 F. 219; 59 Ark. 513; 134 U.S. 316; 96 U.S. 97; 166 U.S. 533; 111 U.S. 701; 114 U.S. 606; 164 U.S. 112; 172 U.S. 314. Jurisdictional facts need not appear of record. 78 S.W. 749; 127 F. 219; 66 Ark. 1; 70 Tex. 588; 30 Am. Dec. 155; 67 F. 684; 120 Mo. 134; 62 Minn. 139; 11 Mo.App. 226; 72 Ark. 601; 13 Bush. 544. The complaint in the cause of Levee District v. Memphis Land & Timber Company was sufficient to support the decree. 77 Ind. 371; 104 Ill. 71; 104 Ind. 402; 47 Ind. 185; 79 Cal. 584; 67 F. 684; 50 Mo. 583; 52 Ark. 160; 92 Mo. 178; 79 Ill. 233; 52 Ala. 291; 34 Barb. 144. The affidavit was sufficient to authorize the issuance of notice provided for in levee acts. 10 Wall. 308; 95 U.S. 714; 67 F. 684; 84 N.W. 214; 31 Miss. 578; 32 Ia. 469; 96 N.C. 367; 103 Ind. 86; 69 Ia. 696; 47 Ark. 31. Such notice was not required to be indorsed upon the complaint. 57 Ark. 49; 64 Ark. 205; 19 Minn. 452; 69 N.W. 903; 87 N.W. 838; 61 Ark. 1. The decree was rendered upon evidence. 63 Ark. 513; 47 Minn. 326; 164 Ill. 531; 55 Ark. 37. And was not prematurely rendered. 10 Mass. 105; 50 Ill. 179; 74 Ill. 381.

Randolph & Randolph and W. S. & F. L. McCain, for appellants in reply.

Mrs. Josephine Ballard was not a party to the tax suit, and is entitled to relief. 2 Jones, Mortg. 1412; 110 U.S. 151; 102 U.S. 586; 98 U.S. 517.

OPINION

BATTLE, J.

This is an attack upon a sale of lands made by a commissioner in chancery pursuant to a decree foreclosing the lien of the Board of Directors of St. Francis Levee District for levee taxes, appellees having purchased the lands in controversy at sad sale.

The decree condemning the lands and ordering the sale was rendered on February 14, 1898, a day of the January term, 1898, of the court. The sale was confirmed by the court during the July term, 1898, and appellants appeared September, 1899, and filed their complaint attacking the validity of the sale. They allege that the lands were owned by appellant Josphine Ballard, who was not a party to the foreclosure proceedings, and who was a nonresident of the State, and had no information of the pendency of the suit; that no affidavit for warning order was made, and that the warning order was not indorsed on the complaint.

Appellees entered their appearance, and from a decree dismissing the complaint for want of equity the Ballards appealed. Appellants in their said complaint asked that it be considered by the court either as a motion for rehearing, under the statute, or as an appearance by nonresidents to vacate a judgment and have a new trial, under section 6259, Kirby's Digest, or as an original complaint to quiet title, or as a bill of review, and that relief be granted by cancelling the sale as a cloud upon their title.

The act of the General Assembly of 1895, p. 88, as amendatory of the act of 1893 creating said levee district, provides that the payment of taxes assessed against the lands in the district shall be enforced by suit in the name of the Board of Directors of the Levee District in the chancery courts of the several counties composing the district, and that "said suit shall be conducted in accordance with the practice and proceedings of chancery courts in this State, except as herein otherwise provided, and except that neither attorneys or guardians ad litem, nor any of the provisions of section 5877 of Sandels & Hill's Digest (Kirby's Dig. § 6254) of the Statutes of Arkansas shall be required, and except that said suits may be disposed of on oral testimony as in ordinary suits at law; and this law shall be liberally construed to give said assessment lists the effect of bona fide mortgages for a valuable consideration, and a first lien on said lands as against all persons having an interest therein."

Said act further reads, in part, as follows: "Said proceedings and judgment shall be in the nature of proceedings in rem, and it shall be immaterial that the ownership of said lands may be incorrectly alleged in said proceedings; and said judgment may be enforced wholly against said land, and not against any other property or estate of said defendant. All or any part of said delinquent lands for each of said counties may be included in one suit for each county, instituted for the collection of said delinquent taxes, etc., as aforesaid, and all delinquent owners of said lands, including those unknown as aforesaid, may be included in said one suit as defendants; and notice of the pendency of such suit shall be given as against nonresidents of the county and the unknown owners, respectively, where such suits may be pending, by publication weekly for four weeks prior to the day of the term of court on which final judgment may be entered for the said sale of said land."

The form of the notice required is set forth in extenso in the statute, giving the nature of the suit and the description of the lands, and concluding as following "Said persons and corporations, and all others interested in said lands, are hereby notified that they are required by law to appear and make defense to said suit, or the same will be taken for confessed, and judgment final will be entered directing the sale of said lands for the purpose of...