Carle v. Gehl

• Decision Date: 26 April 1937
• Docket Number: 4-4569
• Citation: 104 S.W.2d 445,193 Ark. 1061
• Parties: CARLE v. GEHL
• Court: Arkansas Supreme Court

104 S.W.2d 445

193 Ark. 1061

CARLE v. GEHL

4-4569

Supreme Court of Arkansas

April 26, 1937

Appeal from Arkansas Circuit Court, Northern District; W. J Waggoner, Judge; affirmed.

Decree affirmed.

Wm. C Gibson and M. F. Elms, for appellant.

Mike McCuing and W. A. Leach, for appellee.

Ector R. Johnson, J. M. Futrell, P. A. Lasley, E. F. McFaddin James G. Coston and J. T. Coston, amici curiae.

OPINION

BUTLER, J.

This suit was filed in the Arkansas circuit court to test the validity of a tax sale made on the second Monday in June, 1932, for the tax delinquent for year, 1931. The specific property involved was six lots in block 10 of Flood's Addition to the town of Stuttgart, situated in the Northern District of Arkansas county. Upon the facts agreed, the trial court found that the sale was void and that same was not cured by act No. 142 of the Acts of 1935. The facts as agreed are that appellee, on the 8th day of June, 1932, the same being the second Monday thereof, was the owner of the lots involved and, at the time of the institution of the suit, was still the owner, subject to the rights and title that the appellant might have acquired therein; that at the collector's sale, made on the 2d day of June, 1932, said lots were sold to the state of Arkansas for taxes, penalties and costs due for the year, 1931, and, after the time for redemption had expired, were certified to the state as forfeited lands; that the amount of said tax, etc., for which the lands were sold is $ 57.82; that appellant purchased said property from the state, paying therefor the sum of $ 161.50, and a deed was duly executed by the state conveying said lands to him. Appellant took possession of said lands and is now in actual possession thereof.

It is further agreed (1) that said lots were assessed together as one tract under a single valuation and were sold en masse for a lump sum; (2) that the county superintendent of schools for Arkansas county did not file in the office of the county clerk record of the proceedings of the county board of education showing school district taxes voted at the annual school election had and held in the year, 1931, and that the clerk of Arkansas county failed to record such report in the record kept for that purpose as required by act No. 503 of the Acts of 1921, and that the amount for which said lots were sold on the 8th day of June, 1932, included the district school tax for the year, 1931; (3) that the county clerk failed to record at the foot of the delinquent list for lands in the Northern District of Arkansas county notice of sale of delinquent lands and failed to certify on said record the publication of said delinquent list for two weeks in succession between the second Monday in May and the second Monday in June, 1932, as required by § 10084, Crawford & Moses' Digest; (4) that the clerk of Arkansas county failed to record in the Northern District of Arkansas county list of lands delinquent for the year, 1931, as required by § 8355 of Crawford & Moses' Digest.

Appellant admits that any of these irregularities would render the sale invalid unless cured by the provisions of act No. 142 of the 1935 legislature, but it is contended that the effect of this act was to cure the defects admitted to exist and that the trial court erred in holding otherwise. The applicable portion of the act relied upon is comprised of one section and is as follows:

"Whenever the state and county taxes have not been paid upon any real or personal property within the time provided by law, and publication of the notice of the sale has been given under a valid and proper description, as provided by law, the sale of any real or personal property for the nonpayment of said taxes shall not hereafter be set aside by any proceedings at law or in equity because of any irregularity, informality or omission by any officer in the assessment of said property, the levying of said taxes, the making of the assessor's or tax book, the making or filing of the delinquent list, the recording thereof, or the recording of the list and notice of sale, or the certificate as to the publication of said notice of sale; provided, that this act shall not apply to any suit now pending seeking to set aside any such sale, or to any suit brought within six months from the effective date of this act for the purpose of setting aside any such sale."

Since the judgment in the court below and the filing of the case in this court, act No. 264 of the Acts of 1937, in express terms, repeals act No. 142 of the Acts of 1935 relied upon by appellant. In one of the supplemental briefs, filed by counsel when their attention was called to the repeal of act No. 142, the position is taken that as the remedy provided by said act invoked in the pending proceeding no longer exists all rights under it are concluded by its repeal. In other briefs the same contention is made on the theory that act No. 142 should be treated as a statute of limitation. There is authority to support these contentions, but whatever the law may have been in other jurisdictions, even that supported by the weight of authority, it has no effect because of the effect of § 9759 of Crawford & Moses' Digest which is as follows: "No action, plea, prosecution or proceeding, civil or criminal, pending at the time any statutory provisions shall be repealed, shall be affected by such repeal, but the same shall proceed in all respects as if such statutory provisions had remained in force." So far, then, as the instant case is concerned, and all others filed prior to the repealing act, act No. 142 of the Acts of 1935 is in full force and effect, and the questions are, (1) was the act within the power of the Legislature and, (2) if so, what is its effect? It is suggested that the act is a statute of limitation and can have no retroactive effect. In this we think learned counsel mistaken. Within the well-recognized definition of curative act, act No. 142 is one. That definition is as follows: "A curative act is one intended to give legal effect to some past act or transaction which is ineffective because of neglect to comply with some requirement of law." This is clearly the purpose of act No. 142 and, as such, is necessarily retroactive.

It is suggested in argument that the above quoted statute was in excess of the power of the Legislature in that its effect was to destroy a vested right and to strike down meritorious defenses as that term has been defined by this court. Learned counsel for appellee, in their excellent brief, argue that this is the only logical conclusion to be reached based on the decisions of this court which, they contend, announce the doctrine that where a tax sale is invalid for any irregularity, informality, illegality or omission on the part of any officer having any duty to perform in connection with the tax proceedings or tax sale, such are meritorious defenses beyond the power of the Legislature to validate even though the requirement, failure to comply with which, constitutes the irregularity, illegality or omission of duty rendering the sale invalid, could have been dispensed with by the Legislature in the first instance....