Board of Directors of St. Francis Levee District v. Fleming

• Decision Date: 24 January 1910
• Citation: 125 S.W. 132,93 Ark. 490
• Parties: BOARD OF DIRECTORS OF ST. FRANCIS LEVEE DISTRICT v. FLEMING
• Court: Arkansas Supreme Court

125 S.W. 132

93 Ark. 490

BOARD OF DIRECTORS OF ST. FRANCIS LEVEE DISTRICT v. FLEMING

Supreme Court of Arkansas

January 24, 1910

Appeal from Crittenden Chancery Court; Edward D. Robertson Chancellor; reversed.

Motion overruled.

N. W Norton and H. F. Roleson, for appellant.

1. The decree for levee taxes was valid on its face, and recites proper notice. The report of sale was properly confirmed, and the deed from the commissioner to the board of directors was properly executed, examined and approved. It was in the nature of a proceeding in rem, immaterial that the ownership of the lands be accurately stated therein, and the judgment was enforceable against the lond only. Acts 1895, p. 88. McCann was a non-resident of the State, and no one was in possession of the land under him. Personal service on him was not required. The State's deed was not recorded until May 13, 1901. Id. p. 90; 74 Ark. 174.

2. Appellee's title rests upon the forfeiture for the taxes of 1883 and 1884. The tax sale was void, because (a) it does not affirmatively appear on the record that the clerk's certificate of publication was made before the day of sale. 74 Ark. 583; 55 Ark. 218; 51 Ark. 34; 68 Ark. 248. (b) The delinquent lists for taxes for those years were not returned by the collector and filed with the clerk until April 13 1886. 66 Ark. 422; Kirby's Dig. § 7083. (c) The lands were sold for too much costs. 61 Ark. 414; Id 36.

3. The court erred in holding that appellant and its grantees were estopped. The officers of appellant charged with the duty of making assessments and collecting taxes upon the land were not agents, but public officers discharging an official duty. The district could not be bound by any unauthorized act nor official misconduct of theirs. 42 Ark. 118; 39 Ark. 580; 40 Ark. 251; 67 Ill. 435; 72 Ark. 52; 1 Allen 172; 4 Allen 58. These officers had no power to convey the land by deed, and hence could not indirectly, by estoppel, bind the board. 2 Herman on Estoppel, §§ 1222, 1176; 63 N.H. 328. Ultra vires acts of officers of public corporations are incapable of ratification. 29 Am. & Eng. Enc. of L. 87, note 2. The land was public property, and held in trust by appellant for public purposes. 64 L. R. A., 333; 88 N.W. 523, 525.

Randolph & Randolph, for appellee.

1. Under the law authorizing the donation of lands forfeited to the State for non-payment of taxes, it was necessary that McCann prove to the satisfaction of the Commissioner of State Lands his right to a deed for the lands involved here, amongst other things, his actual residence upon the same for the period required by law. Kirby's Dig. §§ 4809, 4811, 4813, 4815, 4817, 4819. The possession thus established is, in the absence of proof of its having been disturbed by some adverse holder, presumed in law to have continued until he made the deed to appellees. 75 Ark. 593; 34 Ark. 598; 38 Ark. 182; 1 Greenleaf, Ev. § 41. The commissioner's deed to McCann is conclusive, so far as the State had the title to convey, unless set aside in a court of equity for fraud or illegality. 24 Ark. 40; Id. 433; 13 Pet. 436, 448; 12 Ark. 297; 16 Ark. 414; Id. 440; 31 Ark. 425; Id. 609; 27 Ark. 200; 33 Ark. 833; 39 Ark. 120. The deed is valid, and is prima facie evidence of the grantee's title. 76 Ark. 450; 82 Ark. 31; 122 S.W. 111; 46 Ark. 96; 49 Ark. 266. The allegations in the complaint that McCann was a citizen and resident of the county, in possession of the lands when the suit for levee taxes was brought, had a tenant thereon occupying it, that he was not made a party to the suit, was not served with process nor given notice thereof, and that no levee taxes were then due, were not denied by the answer, and must be taken as true. It was not necessary for appellee to prove those facts. 41 Ark. 17; 46 Ark. 132; 31 Ark. 346; 51 Ark. 399. Actual service upon McCann was essential. Acts 1895, p. 92; 174 F. 133.

2. McCann and his grantees, appellees, it is clearly shown, paid the taxes on the land continuously under color of title for more than seven years next preceding appellant's quitclaim deed to Williamson, at least three of which years were after the passage of the act of March 18, 1899. Kirby's Dig. § 5057. Title has ripened in appellees for this reason, in addition to the adverse holding of McCann for more than seven years after he obtained the donation deed. Acts 1899, p. 135; Kirby's Dig. § 655; 80 Ark. 411; 68 Ark. 551; 74 Ark. 302; 83 Ark. 158; Id. 522; 89 Ark. 300. See also 48 Ark. 312; 49 Ark. 266; 50 Ark. 340; 74 Ark. 488; Angell on Limitations, §§ 1-5; 79 Ark. 364; 76 Ark. 443; 144 U.S. 533.

3. By reason of the fact that, prior to the decree of sale under which appellant obtained its deed, McCann paid to it the levee taxes for the years 1893 and 1895, that suit was brought for the levee taxes against the land in the name of a person other than McCann, and that thereafter appellant accepted from him the levee taxes for the year 1897 and subsequent years, appellant and its vendee, Williamson, were properly held by the court to be estopped to set up title against appellees. 34 Ark. 704; 140 U.S. 634; 68 Ark. 250; 35 Ark. 293; 37 Ark. 47; 50 Ark. 430; 55 Ark. 296; 75 Ark. 411; 80 Ark. 8; Id. 543; 81 Ark. 143; Id. 244. A plaintiff purchasing the property of a defendant under a judgment or decree in plaintiff's favor, or under an execution based thereon, takes only such title as the defendant had, which title may be defeated if the judgment or decree is erroneous or is reversed. 2 Freeman on Executions, § 348; 34 Ark. 569; 54 Ark. 239. And a sale under a decree which is void for want of jurisdiction by the court of the subject-matter or of the person of the defendant is itself void and passes no title. Freeman on Jud. Sales, 162, § 48.

OPINION

MCCULLOCH, C. J.

This appeal involves a controversy over the title to a quarter section of land in Crittenden County. Appellees claim title under a tax forfeiture to the State and donation deed to appellee's grantor, McCann, and possession for the statutory period of limitation under the donation deed. Appellants claim title under a sale for levee taxes in 1898, made pursuant to a decree of the chancery court rendered in a suit instituted by the levee district to enforce the payment of delinquent levee taxes. The decree of the chancery court in the foreclosure suit was rendered February 14, 1898, and condemned the land for the levee taxes of 1896. Sale was made by the commissioner of the court June 13, 1898, and the sale was reported to and confirmed by the court July 21, 1898. At that time the statute provided no period for the redemption of lands sold for levee taxes of that district. The board of directors purchased the land at the sale, and subsequently sold and conveyed it to the other appellants, who are the real parties in interest, and now claim the land.

The tax sale under which appellees claim title was void for several reasons not necessary to enumerate; but their grantor, McCann, was in possession the requisite length of time under his donation deed from the State to get title by limitation. This operated as a complete investiture of title, and enables appellees to maintain this action, unless their title has been divested by the subsequent levee tax sale.

The question in the case is whether or not appellants have a valid title under the levee tax sale made by the commissioner of the chancery court in 1898, which they can assert against appellees. The statute (Acts of 1895, p. 88) which authorizes foreclosure proceedings to enforce the payment of levee taxes due the St. Francis Levee District provides that "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 non-residents 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 judgments may be entered for the said sale of said lands." The same statute contains also the following provision in reference to the procedure in such suits: "As against any defendant who resides in the county where such suit may be brought, and who appears by the record of deeds in said county to be the owner of any of the lands proceeded against, notice of the pending suit shall be given by the service of personal summons of the court at least twenty days before the day on which said defendant is required to answer, as set out in said summons. * * * And provided, further, actual service of summons shall be had where the defendant is in the county or where there is an occupant upon the land."

The foreclosure decree involved in the present suit was the same one involved in the case of Van Etten v Daugherty, 83 Ark. 534, 103 S.W. 737, where the court held that the decree was void as to the lands actually occupied by the owner or his tenant, and as to the lands of a resident of the county whose title appeared of record, unless there had been personal service of summons. McCann was not a resident of the county where the lands are situated. He was a non-resident of the State, and his donation deed was not recorded at that time; but appellees attempted to...