Buckner v. Sugg

• Decision Date: 25 June 1906
• Citation: 96 S.W. 184,79 Ark. 442
• Parties: BUCKNER v. SUGG
• Court: Arkansas Supreme Court

96 S.W. 184

79 Ark. 442

BUCKNER v. SUGG

Supreme Court of Arkansas

June 25, 1906

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

STATEMENT BY THE COURT.

The plaintiffs, H. A. Suggs and others, are the owners of fractional section 7, township 15 north, range 13 east, in Mississippi County, containing 358 acres, as shown by the original government survey, and bordering upon Buford's Lake, a body of water meandered and platted upon said public survey.

The land in controversy was formerly within the bed of said lake which became uncovered many years ago by gradual recession of the waters, and is claimed by the owners of said section 7 by virtue of their riparian rights as owners of the adjoining lands. If the lines of the public survey had been extended so as to embrace this land, it would be properly described according to said survey, as the south half of section 12 in township 15 north, range 12 east. For more than twenty years prior to the commencement of this suit it has been commonly known and designated by that description, and in the year 1893 the lines thereof were run and established by the county surveyor. It was regularly assessed for levee taxes of the St. Francis Levee District under the description named above (south half of section 12, township 15 north, range 12 east) and in 1897 was sold for levee taxes under that description by a commissioner of the chancery court under the decree of that court foreclosing the tax lien of the levee district. The defendant, George Buckner, claims title to said land under said sale, and the plaintiffs brought this suit in equity against the defendant to cancel said claim as a cloud upon their title to said section 7 and the land in controversy joined thereto by reliction.

The complaint alleges that the south half of section 12 was sold under a levee decree rendered in 1897 for the levee taxes of 1895 to J. T. Lasley, and by him conveyed to the defendant George Buckner, and that the assessment for levee taxes and decree based thereon are void, because the land was "unsurveyed land lying within Buford's Lake, and was not subject to levee taxation of any kind."

The defendant made answer, admitting that he claimed title to said land under said decree and sale for levee taxes, and alleging that said decree and sale were in all respects regular and valid, and that the title to said land passed thereunder to the purchaser at said sale.

During the progress of the suit all the owners of the other lands fronting Buford's Lake, as originally meandered, were brought in as parties.

Upon final hearing of the cause a decree was rendered declaring said sale for levee taxes to be void and canceling the defendant's said claim of title thereunder as a cloud upon the titles of the owners of the lands fronting on the lake.

The defendant appealed to this court.

Degree reversed and cause remanded.

D. F. Taylor and Murphy, Coleman & Lewis, for appellant.

1. The complaint alleges that the assessment for levee taxes and the decree based thereon are void beacuse the land was unsurveyed land lying within Buford's Lake, and was not subject to levee taxes nor taxation of any kind. This is the sole issue. "All property, whether real or personal, in this State * * * shall be subject to taxation." Kirby's Digest, § 6873.

2. As to the sufficiency of the description, it is shown that the section was surveyed and subdivided by the county surveyor in 1893, and all its lines established, and that it had been popularly known as "section 12" for more than 20 years. The description employed was not only pertinent and accurate, but, in view of the facts, was the only description which would notify the owner and the public of what land was being assessed and the charge against it, and was sufficient. Cooley on Taxation (2 Ed.), 404-405; Ib. (3 Ed.), 740; Ib. (3 Ed.), 747; 27 Am. & Eng. Enc. Law (2 Ed.), 685, note 1 and cases cited; 99 U.S. 441; 71 Md. 20; 85 Minn. 518; 61 Me. 203; 17 N.H. 426; 71 Ala. 529; 23 Cal. 163; 33 Cal. 152; 15 R. I. 48; 58 Pa. 266; 42 N.J.L. 401; 194 Ill. 24; 86 Md. 440; 34 Minn. 67; 45 Minn. 502; 64 Ark. 580; 66 Ark. 422; 59 Ark. 22; 40 Ark. 237; 68 Ark. 544; 73 Ark. 221; 76 Ark. 261; 53 Ark. 114; Kirby's Digest, § § 6976, 6980, 6989.

Driver & Harrison, for appellee.

If the land was subject to taxation, it was not as "section 12", but as section 7 and in an adjoining range. The reliction could not stand separate and apart from the land to which it is added, but becomes a part of the whole, and governed by the same description. 1 Am. & Eng. Enc. Law (2 Ed.), 469; 84 Mo. 353. This court will take judicial knowledge that section 12, in township 15 north, range 12 east, does not exist, and has never existed. 34 Ark. 224; 28 Ark. 378. It follows that there was nothing to be taxed and nothing to be obtained by a purchaser under a pretended sale. A description sufficient to convey title as between vendor and vendee may not be sufficient in a tax proceeding. 38 Minn. 384. See also 50 Ark. 484. A description in a tax proceeding which is inherently and fatally defective can not be helped out by extrinsic evidence. 3 N.D. 107; 23 Tex. 36; 21 Cal. 291; 60 Ark. 460.

OPINION

MCCULLOCH, J., (after stating the facts.)

Appellant contends that the sole question raised by the pleadings is that the land in controversy was not subject to taxation because it "was unsurveyed land lying within Buford's Lake." The complaint sets forth all the facts concerning the location, etc., of the land, and therefore presents for our consideration, not only the question just stated, but also the further one, now insisted upon by appellee, that the description of the land was so imperfect that the assessment and sale were void.

The first-named question is easily disposed of in favor of the validity of the assessment and sale by reference merely to the fact that the land was private property, even though unsurveyed, and was, under the statues of the State, subject to State and county taxes, as well as levee taxes. The statute provides that "all property, whether real or personal, in this State," except certain kinds which are declared to be exempt, shall be subject to taxation. Kirby's Digest, § 6873. The act creating the St. Francis Levee District provides that all lands situated within the district shall be subject to levee taxes. Act. Feb. 15, 1893, § 7.

Was the description sufficiently certain and definite to put the owner of the land on notice and authorize a valid assessment and sale?

It is well settled, not only by the decisions of this court, but by the adjudged cases in the courts of other States, as far as we can discover, that, in order to make a valid assessment and sale of land for taxes, the land must be described with certainty upon the assessment rolls and in all subsequent proceeds for the enforcement of payment of the tax. The chief reason for this requirement is that the owner may have information of the charge upon his property. It has sometimes been said that a description that would be sufficient in a conveyance between individuals would generally be sufficient in assessments for taxation. We do not, however consider that a safe test. The description in tax proceedings must be such as will fully apprise the owner, without recourse to the superior knowledge peculiar to him as owner, that the particular tract of his land is sought to be charge with a tax lien. It must be such as will notify the public what lands are to be offered for sale in case the tax be not paid. 1 Cooley on Taxation (3 Ed.), p. 742; Keely v. Sanders, 99 U.S. 441, 25 L.Ed. 327.

The lands now within the meandered bounds of the lake have not been officially surveyed and platted, though the lines were run by the county surveyor by extension of the lines of the original public survey, and the tract in question has been popularly known by the description thus afforded. The...