Berry v. Davidson, 4-5668.

• Decision Date: 20 November 1939
• Docket Number: No. 4-5668.,4-5668.
• Parties: BERRY v. DAVIDSON et al.
• Court: Arkansas Supreme Court

133 S.W.2d 442

BERRY v. DAVIDSON et al.

No. 4-5668.

Supreme Court of Arkansas.

November 20, 1939.

Appeal from White Chancery Court; Frank H. Dodge, Chancellor.

Suit by Annie Berry against J. P. Davidson and others to foreclose mortgage, wherein Walter B. Paschal, Jr., and G. A. Hunnicutt intervened. From separate parts of the decree, plaintiff and intervener Hunnicutt appeal.

Affirmed.

Culbert L. Pearce, of Searcy, for appellants.

C. E. Yingling, Jr., and C. E. Yingling, both of Searcy, for appellee.

BAKER, Justice.

This suit was filed by the appellant to foreclose a mortgage dated March 1, 1923, due ten years after date. The note secured by this mortgage or deed of trust was payable to the American Investment Company, Inc. On April 10, 1923, the note was assigned and delivered to Catherine Casserly, trustee. The said note and mortgage were delivered to the appellant Annie Berry as a part of her share in her father's estate, which estate had been left by will to Catherine Casserly, his widow, and to the appellant, his only child and heir at law.

In this suit the defendant, Walter B. Paschal, Jr., who was the vice-president and secretary of the American Investment Company, Inc., and G. A. Hunnicutt intervened. Paschal claimed title to the E½ of the NE¼, Section 12, Township 6 N., Range 6 W. The allegations were to the effect that on the 25th of September, 1936, the State of Arkansas by its deed conveyed lands that had forfeited to the state for taxes to one Floyd W. Hamilton. Hamilton on the 19th of December, 1936, conveyed the above described tract of land to Walter B. Paschal, Jr. The allegations to support Hunnicutt's intervention were substantially to the effect that Catherine Casserly died intestate in Jo Daviess County, Illinois, on or about the second day of March, 1933, and at the time of her death she was the owner of the note and mortgage, sued upon by appellant. Thereafter, Maud E. Smith, who was appointed administratrix of the estate of Catherine Casserly for value received, sold and assigned the mortgage mentioned in the plaintiff's complaint to the Paschal Investment Company. This Paschal Investment Company was a subsidiary or may have been only an allied corporation working in connection with the American Investment Company, Inc. Thereafter on October 29, 1937, the Paschal Investment Company made a written assignment of the note and mortgage to the intervener G. A. Hunnicutt, although neither had actual or constructive possession thereof, who by his intervention asserted his ownership on the same note and mortgage that Mrs. Annie Berry had sued upon in her foreclosure proceedings. In Paschal's intervention, in addition to his allegations of ownership acquired through the tax title, he asserted that the State of Arkansas, after the forfeiture and sale of these lands to the state, had confirmed said title on June 8, 1936.

The trial court held that Annie Berry was the owner of the note and mortgage and was entitled to a first lien on the lands described therein except that the lien had been defeated on the 80 acres of land claimed by Paschal under the tax sale and confirmation thereof. Annie Berry appealed from that part of the court's decree which was a denial of a lien against Paschal's land and Hunnicutt appealed from that part of the decree that declared ownership of note and first mortgage to be in Annie Berry instead of in him as the intervener. These are the only questions submitted to us for our consideration.

The plaintiff attacks the tax sale and asserts that the 80 acre tract of land was never sold by the collector of White county to the State of Arkansas for taxes due thereon for the year of 1932, and adds to this assertion that "it may be true that the collector attempted to sell the property but the attempted sale was invalid for these reasons". There is then set out about ten different assignments or reasons for the invalidity of the tax sale. One is that there was no proper levy of taxes in 1932 payable in 1933, that the taxes were never made and extended on the tax books of White county as provided by law. Second, that no proper appropriation of taxes for the years 1932 and 1933 was ever made and recorded as provided by law.

It is most probably unnecessary to set out all these different objections urged as affecting the validity of the tax sale. We think it might well be conceded by anyone who would read the record in this case that practically every objection argued by the appellant is in itself sufficient to establish the invalidity of the tax sale except for the effect of the confirmation pleaded by the intervener, Paschal. It may also be said further that the appellant's contention in regard to these matters is well fortified by the numerous well considered authorities cited. Indeed, we find no fault with the case of Mixon v. Bell, 190 Ark. 903, 82 S.W.2d 33. The same has been modified in the later case of Lambert v. Reeves, 194 Ark. 1109, 110 S.W.2d 503, 112 S.W.2d 33. These cases related to the proper extension of the taxes upon the tax book. We are also acquainted with and gave continued approval to the case of Buchanan v. Pemberton, 143 Ark. 92, 220 S.W. 660; Simpson v. Reinman, 146 Ark. 417, 227 S.W. 15; Quertermous v. Walls, 70 Ark. 326, 67 S.W. 1014; and the very recent case of Ramsey v. Long-Bell Lumber Co., 195 Ark. 528, 112 S.W.2d 951. All of these cases relate to notice of delinquency to up-hold and support a valid forfeiture of sale to the state for the non-payment of taxes. We see the application made by the citation of authority as the same has arisen under the facts in this case wherein proof shows there was no notice posted or publication of the delinquent lands for sale otherwise given. The mandate of the statute, § 10084 of the C. & M. Digest, as amended by act 250 of 1933, Pope's Dig. § 13846, was in full force and effect and was wholly ignored, nor is there any doubt that the requirement of the law as to publication of notice was mandatory. See Emerson v. Voight, 196 Ark. 129, 116 S.W.2d 348; Union Bank & Trust Co. v. Horne, 195 Ark. 481, 113 S.W.2d 1091; Hirsch and Schuman v. Dabbs and Mivelaz, 197 Ark. 756, 126 S.W.2d 116. Such an irregularity, that is, the failure to give the required statutory notice, would have made Act 142 of 1935, p. 402, ineffectual had it been deemed otherwise applicable. Other recent cases supporting appellant's contention are Edwards v. Lodge, 195 Ark. 470, 113 S.W.2d 94; Union Bank & Trust Co. v. Horne, 195 Ark. 481, 113 S.W.2d 1091; McWilliams v. Clampitt, 195 Ark. 908, 115 S.W.2d 280, as well as the case that has been perhaps cited more frequently than any other since it was announced, that is Carle v. Gehl, 193 Ark. 1061, 104 S.W.2d...