Beasley v. Equitable Securities Co.

• Decision Date: 05 March 1904
• Citation: 84 S.W. 224
• Parties: BEASLEY et al. v. EQUITABLE SECURITIES CO.
• Court: Arkansas Supreme Court

84 S.W. 224

BEASLEY et al. v. EQUITABLE SECURITIES CO.

Supreme Court of Arkansas.

March 5, 1904.

On Rehearing, December 3, 1904.

Dissenting Opinion on Rehearing, December 10, 1904.

Appeal from Circuit Court, Jefferson County; Antonio B. Grace, Judge.

Action by the Equitable Securities Company against Charles Beasley and others. From a judgment for plaintiff, defendants appeal. Affirmed.

S. R. Allen and Dodge & Johnson, for appellants. Bridges & Wooldridge, for appellee.

BATTLE, J.

On the 5th day of August, 1899, the Equitable Securities Company brought an action in the Jefferson circuit court against Charles Beasley to recover the southeast quarter of the northwest quarter of section 31, in township 4 south, and range 17 west. Plaintiff alleged in its complaint that, in a suit instituted by the state of Arkansas, on relation of Jefferson county, against certain lands, in the Jefferson circuit court, on the chancery side thereof, under the act entitled "An act to enforce the payment of overdue taxes," approved March 12, 1881, (Acts 1881, p. 63), the court ordered that the land sued for be sold to pay the taxes assessed against it and remaining unpaid, and appointed and directed John M. Clayton as special commissioner to make the sale; that Clayton, as such special commissioner, in pursuance of the same, on the 20th day of February, 1883, sold the land to Joseph and Louis Altheimer, reported the sale to the court, and, the sale having been confirmed, and the land not having been redeemed in the time prescribed by law, conveyed it to the purchasers.

That Joseph and Louis Altheimer, on the 2d day of May 1892, conveyed said land to M. H. Johnson in trust to secure certain indebtedness to Norman F. Thompson; that this mortgage was foreclosed by a decree of the Circuit Court of the United States for the Eastern District of Arkansas, the land was sold under the decree to plaintiff, the sale was confirmed by the court, and the land was conveyed to the purchaser.

George J. Gould, on his motion, was made a defendant in the action. The two defendants filed separate answers to the complaint. The substance of these answers is correctly set out in the abstract of the defendants in the words and figures following:

"The answers deny title in plaintiff; deny the validity of the sale under the overdue tax law; deny the jurisdiction of the chancery court to decree the sale; allege that complaint in the said overdue tax proceeding does not allege and set out the year or years for which tax was due, and that there was no warning order giving amount of taxes and the years for which they were due; that there was no affidavit showing the lawful publication of such warning order; that no decree pro confesso was entered upon the record by the clerk in said cause, as required by law; that the decree was for a tax for a year not given in the complaint, warning order, and publication; that sale under said decree was not reported and confirmed by the court, as required by law; and allege that the land was forfeited to the state for taxes before the year 1877, and that on the 15th day of March, 1879, the state of Arkansas, by act of General Assembly donated the land to the Little Rock, Mississippi River & Texas Railway conditionally; that the lands were selected by the railway August 18, 1883, and on the 18th day of December, 1883, the state of Arkansas conveyed the land to the said railway by deed of the Governor. The railway mortgaged the land, which mortgage was foreclosed in the United States Circuit Court at Little Rock, Ark., and that the land was bought by defendant Gould as trustee, and that the sale thereof was approved, and that same was a judicial sale. Alleges the payment of tax by railway to 1893, and by defendant Gould since 1893, until October 26, 1896, when Gould bargained and sold the land to defendant Beasley on a time contract, and put Beasley into possession thereof; and that since that time Beasley has been seised and possessed of the said land and every part thereof, in open, notorious, and adverse possession, and paid the tax thereon since 1896; that at no time was the plaintiff possessed or seised of the said land or any part thereof; pleaded statutes of limitation; setting up improvements made in good faith by Beasley on the said land under his contract with Gould, in all amounting, with tax, to $342.75."

On the 29th day of November, 1900, the following agreement between parties was filed:

"It is agreed that upon the trial of this cause the same shall be submitted to the court sitting as a jury. And defendants waive all proof of plaintiff's corporate capacity and admits same. And waives all proof of allegations in complaint as to the conveyance to Altheimer by Clayton, commissioner, and mortgage by Altheimer to plaintiff, and the foreclosure of such mortgage, and sale and conveyance under decree, and admits that all title ever held by said Altheimer is fully vested in plaintiff. Plaintiff admits that the state's title, whatever it is, by virtue of the donations under act of 1879, conveyed by deed of December 18, 1883, is vested in defendants, and three questions are to be presented to the court:

"(1) All the statutes of limitation.

"(2) The validity of the proceedings, under the overdue tax law of 1881, of the Jefferson chancery court concerning said land, and if the same shall be held valid so as to pass title to Altheimer under the sale and deed by Clayton, commissioner, to them, then:

"(3) The value of the improvements put upon the land in controversy by defendants, and the amount of taxes paid thereon by defendants and those from whom they acquired title since 1883, less the mesne profits properly to be allowed plaintiff since its acquired title, and judgment shall be entered by the court upon its findings upon said three questions, but the right to recover for improvements by defendants is not conceded by plaintiff."

After hearing the exidence adduced by all the parties, the circuit court decided the three questions in favor of the plaintiff, and rendered judgment in its favor for the land, and $60 for rents thereof, as damages, and the defendants appealed.

The county of Jefferson, in the name of the state of Arkansas, instituted a suit in the circuit court of that county, on the equity side thereof, against the land in controversy and other lands, to have the same condemned and sold for the payment of certain taxes due thereon. This suit was instituted on the 22d day of August, 1881, under an act entitled "An act to enforce the payment of overdue taxes," approved March 12, 1881 (Acts 1881, p. 63), and the court, by decree therein, ordered the land sold to pay certain taxes, specified in the decree, due thereon. The validity of this decree is questioned by the appellants. Is it a valid decree?

The evidence shows that a complaint was filed in the suit, and that it has been lost, and for that reason was not produced and read as evidence. On the filing of it the clerk of the court entered on the record a warning order, which was in strict conformity with the statute. In this order it is stated that the plaintiff filed a complaint, and set forth therein that certain taxes are due on the land in controversy and other lands, thereby implying that the taxes due on the lands were specified. The warning order is as follows:

"In Jefferson Circuit Court. In vacation, Aug. 22, 1881.

"The State of Arkansas on the Relation of Jefferson County, Plaintiff, vs. Certain Lands on Which Taxes are Alleged to be Due, Defendant.

"Now on this day comes the plaintiff and files herein in court its complaint in which it sets forth that there are certain taxes due on the following lands, to-wit: (Among others) south east quarter of north west quarter, section 31, township 4 south, range 7 west, (being nearly hundreds of tracts additional).

"Now, therefore, all persons having any interest or right in said lands are required to appear in this court in forty days, then and there to show cause, if any they can, why a lien shall not be declared on said land for unpaid taxes, and why said lands shall not be sold for the nonpayment thereof."

                       "Attest: A. S. Moon, Clerk
                                  "R. H. Standford, D. C."
                

The warning order, in connection with the decree, was sufficient to show that the lands in controversy were described in the complaint, and that the plaintiff therein thereby sought to have the same condemned and sold to pay certain taxes due thereon. They (the warning order and decree) are the proceedings, in part, which the "overdue tax act" provides shall follow the filing of such complaint.

"A copy of the warning order with affidavit of publication" thereof was also filed, but they were lost, and for that reason were not produced and read as evidence. The court found that the publication was according to law. This, as to publication, is sufficient to sustain the jurisdiction of the court against collateral attack. Clay v. Bilby (Ark.) 78 S. W. 749; Sand. & H. Dig. §§ 4190, 4191.

Jurisdiction was acquired over the land and its owner, in the suit instituted under the "overdue tax act," by the filing of the complaint, stating that taxes were due thereon, and by publication of the required notice. For mere errors and irregularities, the decree in such suit could be attacked only in a direct proceeding. McCarter v. Neil, 50 Ark. 188, 6 S. W. 731; Clay v. Bilby, supra. The failure of the clerk to enter on record a decree pro confesso according to the act, if any, was a mere irregularity, and did not subject the decree to a collateral attack, as appellants contend. It did not deprive the court of the jurisdiction to render the final decree, or work any injury that was not cured by such decree. Acts 1881, pp. 66-68, §§ 5, 8, and 9.

It is contended that the evidence in this case fails to show that the land in controversy was sold under the decree in the "overdue tax suit." The record does show that the...