Boles v. Mcneil
| Decision Date | 29 April 1899 |
| Citation | 51 S.W. 71,66 Ark. 422 |
| Parties | BOLES v. MCNEIL |
| Court | Arkansas Supreme Court |
Appeal from Benton Circuit Court EDWARD S. MCDANIEL, Judge.
Reversed and remanded for new trial.
E. P Watson, for appellant.
The description of the land was sufficient. Cooley, Taxation 407; 64 Ark. 580; 81 Ind. 180; 78 Ill. 570. The collector had the discretionary power of filing the delinquent list at any time after April 10, and before the second Monday in May. Sand. & H. Dig. §§ 6574 and 6603. The word "by," as used in the statute, means "before." Webst. Diet.; 5 Am. & Eng. Enc. Law (2 Ed.), 82. The use of the word "until" in section 5731 Mansf. Dig. was a clerical error, and one which this court can correct. 34 Ark. 263; 35 Ark. 56.
J. A Rice, for appellee.
A description referring to land as the "E2", etc., is insufficient. 44 Am. St. Rep. 516; 55 N.Y. 200; 59 Ark. 460; 44 Am. St. Rep. 516; 26 Minn. 212; 2 N. Dak. 141. Filing the delinquent list before the second Monday in May was a premature act. 35 Ark. 505.
The subject-matter in controversy in this action is the east half of the southeast quarter of section twelve in township twenty north, and in range thirty-two west, and fractional southwest quarter of the southwest quarter of section seven in township twenty north and in range thirty-one west. Appellee deraigned title to the same from the United States, and the appellant claimed under a purchase at a tax sale. The circuit court held that the tax sale was invalid, and rendered judgment in favor of the appellee against the appellant for the possession of the land.
The court found that the sale of the east half of the southeast quarter of section twelve in township twenty north, and in range thirty-two west, for taxes was invalid, because it was not sufficiently described in the notice of the sale at which it was sold, and held that the sale of both tracts for taxes was void, because they were prematurely returned delinquent on account of the non-payment of the taxes assessed against them for the year 1892.
These lands were assessed for taxation as follows:
Parts of Sec.
Sec.
T.
R.
Area Value
A. W. Dinsmore
E 1/2 SE.
12
20
32
160
A. W. Dinsmore
Frl. SW. SW.
7
20
31
50
Taxes to the amount of $ 2.08 were levied on each of them for the year 1892. Both tracts were returned delinquent on account of the non-payment of these taxes on the first day of May, 1893. The clerk added a penalty of twenty-five per cent. on the total taxes levied, and caused the same to be advertised for sale for the taxes and penalty due thereon, in the manner provided by law, in words and figures as follows:
Parts of Sec.
Sec.
T.
R.
A.
Total
A. W. Dinsmore
Frl. SW. SW.
7
20
31
50
160
2.08
.52
2.60
A. W. Dinsmore E SE.
12
20
32
160
2.08
.52
2.60
They were sold by the collector of taxes, pursuant to the advertisement, and were purchased by the appellant. Was the east half of the southeast quarter of section twelve sufficiently described in the advertisement?
The statutes of this state provide that each tract or lot of real property shall be so described in the assessment thereof for taxation as to identify and distinguish it from any other tracts or parts of tracts; and that the same shall be described, if practicable, according to section, or sub-division thereof, and congressional townships. In an endeavor to comply with this requirement of the statutes, the assessor described one of the tracts in controversy in his assessment as follows:
Parts of Sec.
R.
E 1/2 SE.
12
20
32
$ 160
And the clerk described it in the advertisement for sale as follows:
Parts of Sec.
R.
E SE.
12
20
32
From these descriptions, it is evident that the clerk, following the description in the assessment, attempted to describe an eighty acres in section twelve, in township twenty, in range thirty-two, in his county (Benton) and in this state. It was a legal sub-division of a section of land,--one-half of a quarter. In a column with the caption, "Parts of Sec." he described it as "E SE." The first letter is the abbreviation of east, and the next two of southeast. In the order they were printed, and in the column they stand, they described a part of a section as east of southeast, and that part of a section, as shown by the description, contained eighty acres,--a half of a quarter of a section. They could designate only one legal sub-division of a section, and that is the east half of the southeast quarter. The land so described was the east half of the southeast quarter of section twelve in township twenty, in range thirty-two, and in the county of Benton. Then, again it was assessed, and advertised for sale, in the name of A. W. Dinsmore, who was the owner of it at the time it was assessed and advertised, subject to a mortgage. This makes the identification of the land more full and complete. We think the description was sufficient. But we do not mean to hold that it would have been sufficient in the absence of the statement of the number of acres the tract described contained.
Was the land prematurely returned delinquent? It was returned on the first day of May, 1893. Appellee contends that it should have been returned on the second Monday in May, 1893, which was the ninth.
Section 5731 of Mansfield's Digest reads as follows:
Section 5760 of the same digest reads as follows:
The act entitled "An act to amend the revenue laws of this state," approved March 28, 1887, amended many sections of Mansfield's Digest by merely changing the time when various acts should be done. It amended section 5731 by changing the word November to January, and the word "until" in the last sentence to "from," and the word February to April, making the last sentence as amended read: "The collector or his deputy shall attend, for the purpose aforesaid, on the day and at the place named in such notice, and thereafter shall attend at his office at the county seat from the 10th day of April of each year, to receive taxes from persons wishing to pay the same." It amended section 5760 by changing the words "first Monday in March" to the words, "second Monday in May," and omitting the words "hereinbefore provided for," in the last sentence.
The decision of the last question in this case involves to some extent the construction of these two sections. Much depends upon the effect that shall be given to the word "from" in the last sentence in section 5731, as amended. The question presented by it is, was the use of it a clerical error?
Section 5731, as amended, after providing that the collector or his deputy shall attend at the places of holding elections in his county, for the purpose of receiving taxes, says: "and thereafter [he] shall attend at his office at the county seat from the 10th day of April of each year, to receive taxes from persons wishing to pay the same." It obviously means that the collector shall commence receiving taxes at the county seat immediately after he has attended the places of holding elections. The word "thereafter" denotes the beginning of the receiving of taxes at the county seat....
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