Beasley v. Equitable Securities Company

• Decision Date: 05 March 1904
• Citation: 84 S.W. 224,72 Ark. 601
• Parties: BEASLEY v. EQUITABLE SECURITIES COMPANY
• Court: Arkansas Supreme Court

84 S.W. 224

72 Ark. 601

BEASLEY v. EQUITABLE SECURITIES COMPANY

Supreme Court of Arkansas

March 5, 1904

Appeal from Jefferson Circuit Court ANTONIO B. GRACE, Judge.

Affirmed.

Judgment affirmed.

S. R Allen and Dodge & Johnson, for appellants.

Appellee was bound to depend upon the strength of his own title. 47 Ark. 215, 413; 65 Ark. 610. There was no complaint upon which judgment could be rendered. 56 Ark. 419; 68 Ark. 211. The act of 1891 must be strictly followed. 56 Ark. 30; 65 Ark. 90; 70 Ark. 207. The deed of the commissioner was void. 53 Ark. 445; 59 Ark. 5. Absolute certainty is required to work an estoppel. 24 Conn. 547; 95 Ga. 142; 11 Mass. 350; 11 Am. & Eng. Enc. Law (2d Ed.), 390; 94 U.S. 608; 158 U.S. 221. The action was barred. 59 Ark. 460; 60 Ark. 163, 499; 53 Ark 419; 59 Ark. 151; 66 Ark. 141; Sand. & H. Dig., § 4819. Defendants were entitled to betterments. 65 Ark. 305.

Bridges & Wooldridge, for appellee.

The court has jurisdiction. The complaint was sufficient. 55 Ark 30; 56 Ark. 422. The description of the land was sufficient. 63 Ark. 1. The decree cannot be attacked collaterally. 50 Ark. 188; 55 Ark. 398; 57 Ark. 423. The statute of limitations does not apply. 66 Ark. 48; 65 Ark. 309. Beasley could claim only improvements. 67 Ark. 184.

OPINION

BATTLE, J.

On the 5th day of August, 1899, 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, 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 plaintiffs; 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 the general assembly, donated the land to the Little Rock, Mississippi River & Texas Railway Company 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; that 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 the same was a judicial sale. Allege 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 seized 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 seized of the said land or any part thereof; plead statutes of limitation; set 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 waive 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 evidence 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 in the 22d day of August, 1881, under an act entitled "An act to enforce the payment of overdue taxes," approved March 12, 1881; 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,

"August 22, 1881.

"The State of Arkansas on the Relation of Jefferson

County----Plaintiff.

v.

"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) southeast quarter of northwest 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. STANFORD, 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, 72 Ark. 101, 78 S.W. 749; Sand. & ...