Bridwell v. Davis

• Decision Date: 06 December 1943
• Docket Number: 4-7183
• Citation: 175 S.W.2d 992,206 Ark. 445
• Parties: Bridwell v. Davis
• Court: Arkansas Supreme Court

175 S.W.2d 992

206 Ark. 445

Bridwell v. Davis

No. 4-7183

Supreme Court of Arkansas

December 6, 1943

Appeal from Cleburne Chancery Court; A. S. Irby, Chancellor.

Affirmed.

C A. Holland, for appellant.

Alton Bittle and J. L. Bittle, for appellee.

OPINION

McFaddin, J.

This appeal involves two lots, each with a different line of title. In addition, there was a request for a nunc pro tunc order regarding each lot.

Appellant initiated this suit in the chancery court by filing against appellee a complaint entitled, "Suit to Set Aside Deeds"; and in that pleading appellant alleged that by two separate foreclosure proceedings in the Cleburne chancery court (one against C. Frauenthal and the other against R. E. Chance) and by commissioner's sales and deeds in said foreclosure, appellant became the owner of the two lots involved in this litigation, one being in Heber Springs, and the other in Shiloh. Appellant further alleged that appellee was claiming the Heber Springs lot under a void deed from the State which should be set aside; and that appellee should be required to disclose his claim of title to the other lot.

Appellant alleged that copies of the commissioner's deeds to appellant were attached as exhibits to the complaint, but sixty days after the filing of the complaint, appellant filed an amendment stating that the commissioner in chancery had "failed to execute the deeds conforming to the court's decree in both of the cases mentioned in the complaint," and plaintiff prayed that orders and deeds be made nunc pro tunc. Defendant filed demurrer and answer, with defenses which will appear in the discussion of the issues. A trial on the merits resulted in a decree dismissing appellant's complaint and amendment for want of equity. This appeal followed.

We will first dispose of the nunc pro tunc issue, since it involves both lots; and then we will dispose of the issues regarding each lot.

The nunc pro tunc question. Appellant claimed title to the lots by reason of two entirely separate foreclosure proceedings. As to the Heber Springs lot, he claimed that he had foreclosed his mortgage and secured a commissioner's deed in a proceeding against C. Frauenthal and wife in 1935. As to the Shiloh lot, appellant claimed he had foreclosed his mortgage and secured a commissioner's deed in a proceeding against R. E. Chance and wife in 1928. When appellant could not find his deeds, he filed an amendment to his complaint in this present case -- in which J. G. Davis was the sole defendant -- and thereby sought to obtain the deeds by nunc pro tunc orders. Relief by motion for a nunc pro tunc order is not an independent proceeding, but is relief to be obtained in the original proceeding. Application for a nunc pro tunc order is not a proceeding separate and distinct from the original action, but is merely auxiliary to the original action. Petition of Breeding, et al. 75 Okla. 169, 182 P. 899; Miller v. Seiler, 82 Ind.App. 36, 142 N.E. 719. So, if appellant considered himself entitled to any relief which an order nunc pro tunc could secure, he should have filed a motion in the C. Frauenthal foreclosure proceeding setting up his desired relief in that case, and likewise, he should have filed a motion in the R. E. Chance foreclosure proceeding setting up his desired relief in that case.

Nunc pro tunc means literally "now for then." It is to make the record speak now what was actually done then. It is based on the power inherent in a court to make its records show at a later date what actually occurred originally. Naturally, therefore, any correction in the record would be auxiliary to the original action and not be by an independent action, as appellant here attempted. The parties in the original action are entitled to notice of the filing of the motion for nunc pro tunc relief. This was pointed out by Mr. Justice Battle in Simpson v. Talbot, 72 Ark. 185, 79 S.W. 761: "The Chancery Court had authority to amend the record of its decree at a subsequent term, so as to make it speak the truth, but it cannot do so without notice first given to the party against whom it is made."

So the amendment filed in this proceeding asking for nunc pro tunc relief in two other cases was entirely improper, and the Chancery Court correctly denied the relief in this case. But we have examined the appeal and record here on the merits as though appellant had established his commissioner's deeds as lost instruments; and we proceed to a determination of the questions involving each lot.

The Heber Springs Lot

I. Appellee's Tax Title. This was lot 1, block 65 Heber Springs, and the plaintiff (appellant) claimed under a deed executed to him by the Commissioner in Chancery in 1935 in the C. Frauenthal foreclosure; and in 1938 appellant had obtained a deed to the lot from the Commissioners of Water and Sewer District No. 1 of Heber Springs. Appellant relied solely on these conveyances. The complaint contained no further deraignment of appellant's title; but alleged that appellee had acquired a deed from the State of Arkansas in 1939 under a forfeiture for taxes of 1935. Against the tax forfeiture, appellant alleged six defects claimed to vitiate the tax sale. But there is absolutely no evidence concerning any of these defects. In other words, there is nothing to show any defects in the tax forfeiture to the State. The tax sale is valid until it is avoided, and in the absence of any proof of any defect or any irregularity in the tax forfeiture, we must conclude that the appellant failed to defeat the appellee's tax title. Stade v. Berg, 182 Ark. 118, 30 S.W.2d 211.

II. The Improvement District Deed. Appellant claimed under a deed from the Commissioners of Water and Sewer District No. 1 of Heber Springs executed in 1938, but there is no proof to show for what year the property had been delinquent for the improvement district taxes, or that it was ever delinquent. There is no presumption that the improvement district foreclosure antedated the forfeiture to the State or vice versa. These are matters for proof -- not presumption -- and there was no proof of any kind about the year of the improvement district delinquency. So appellant failed to offer any proof that tended to show any defect in the State deed under which appellee claimed.

III. Adverse Possession. Appellee's deed from the State was dated February 25, 1939, and the complaint herein was not filed until April 14, 1941. Appellee positively testified that he had held possession of the lot for over two years under his tax deed, so the decree could be affirmed because of two years' possession under the deed from the State. Section 8925 of Pope's Digest.

IV. Disqualifying Interest of Appellee. Appellant alleged that appellee was at one time (1935 to 1940) sheriff and collector of Cleburne county, and was thus disqualified from acquiring the lot from the State in 1939 because of § 13854 of Pope's Digest, which prohibits a collector from being interested directly or indirectly in the purchase of any property sold at collector's sale (which sale in this case occurred in 1935). This section is a part of the general revenue law, and must be read in the light of the sections preceding and following it, in order to determine its...