Cassady v. Norris

• Decision Date: 17 May 1915
• Docket Number: (No. 389.)
• Citation: 177 S.W. 10
• Parties: CASSADY v. NORRIS et al.
• Court: Arkansas Supreme Court

177 S.W. 10

CASSADY v. NORRIS et al.

(No. 389.)

Supreme Court of Arkansas.

May 17, 1915.

Appeal from Polk Chancery Court; Jas. D. Shaver, Chancellor.

Action by C. C. Cassady against R. L. Norris and Waterworks Improvement District No. 2 of the City of Mena, Ark. From a decree for plaintiff, defendants appeal. Affirmed.

On May 13, 1912, the Board of Waterworks Improvement District No. 2 of Mena, Ark., filed suit in the chancery court of Polk county against unknown owners of real estate in the district, for the purpose of collecting delinquent taxes, which became due on the 29th of March, 1912, and were delinquent on the 29th of April, 1912. Service was had on the unknown owners by publication of the summons in a newspaper and posting notices on the property. Judgment was rendered against appellant's property on the 15th of June, and same was sold under the decree of the court to appellee R. L. Norris. The sale was afterwards confirmed, and the deed was executed and delivered to Norris on August 9, 1913. The appellant brought this suit September 12, 1914. He made the Waterworks Improvement District No. 2 a party defendant, and also the appellee Norris. He set up in his complaint that he was the owner of the land in controversy; that he was not a party to the suit in which the same was condemned to be sold for delinquent taxes; that Norris, by failing to pay the taxes for the years subsequent to his purchase and allowing appellant to pay the same for those years, without notifying appellant of his purchase, had perpetrated a fraud on the appellant, and was estopped from claiming title under his deed. The complaint then alleges various irregularities in the proceedings wherein judgment was rendered condemning the lands to be sold, which, if urged on a direct attack against the judgment, would have been sufficient to have set aside the same and to have rendered the sale thereunder void. The complaint also alleged several irregularities in the sale, which, if urged before confirmation, would have been sufficient to render the confirmation void and to have set aside the deed. Among others was an allegation that there was a collusive agreement among the bidders at the sale to suppress competition in bidding. The prayer of the complaint was that the judgment condemning the land to be sold be set aside; that the sale be declared illegal and the deed set aside, and that "plaintiff's title be quieted in him, and for such other relief as to the court seems equitable and just." The answer of the board of improvement admitted that it brought suit against the unknown owners of real estate in the district for the collection of delinquent taxes, and that the lot in controversy was sold under the decree of the chancery court and was purchased by the appellee Norris. It admitted that it had received the full amount of taxes, penalty, and costs for which the land was condemned to be sold. It denied that appellant was known to the commissioners to be the owner of the lot, and denied that they had any knowledge as to who was the owner; denied that it perpetrated any fraud upon the appellant, and denied that the sale was invalid for any reason, and prayed that the suit be dismissed. The appellee Norris answered, setting up that the decree under which he purchased was in all things regular; that the sale was in all things regular, and that the sale had been confirmed by the court and the deed made by the commissioner approved by the court, and setting up that the irregularities of which the appellant complained were a collateral attack upon the judgment of the chancery court condemning the lands to be sold. The court, after hearing the testimony, found that for the year 1912 an assessment was regularly made upon the real estate in the improvement district, and the taxes regularly extended, among other lands, against the lot in controversy; that the taxes were not paid, and that the board of improvement brought suit against the unknown owners of the lands on which the taxes had not been paid, including the lot in controversy; that it was alleged in the complaint that the name of the owner of this lot was unknown, and the same was proceeded against as the land of an unknown owner. The court further found that, after due publication and service as provided by law, the chancery court of Polk county rendered its decree condemning the lot in controversy to be sold, that same was sold by the commissioner appointed by the court for $5.90, which was the correct amount of the assessment, penalty, and costs, and that the report of the commissioner in making the sale was, in all things, approved by the court and by it confirmed. The court further found that the property sold was not redeemed within one year, and that the commissioner, on the 8th day of August, 1913, more than one year after the making of the sale, executed to Norris his deed for the lot in controversy; that the decree, the sale, and the deed, and all the proceedings, were regular and valid, and that the irregularities, if any, in the sale were cured by the confirmation thereof. The court further found that the improvement district had no interest in the present suit, and dismissed the complaint as to it. The court further found that appellee Norris was not a party to any agreement among the bidders at the sale to suppress competition in bidding; that appellant had paid taxes and assessments since appellee's purchase of the lot amounting to the sum of $33.76, and declared the same a lien upon the land, and directed that upon the payment of this sum the appellee's title be quieted and that he have possession of the land in controversy. To reverse this decree is the purpose of this appeal.

W. Prickett, of Mena, for appellants. Elmer J. Lundy, of Mena, for appellee.

WOOD, J. (after stating the facts as above).

The findings and decree of the court are correct.

I. The appellant does not seek by appeal, writ of error, certiorari, nor by bill of review, to set aside the judgment for the errors appearing in the face of the record, or on account of newly discovered evidence, nor does his complaint set forth facts sufficient to constitute a cause of action for vacating a judgment after the expiration of the term, under section 4431, which provides: "Fourth. For fraud practiced by the successful party in * * * obtaining * * * the judgment."

It is true that the complaint alleges:

"Fourth, that said judgment was procured by fraud committed by plaintiff upon this court and this plaintiff, wherein the said plaintiff alleged in its complaint that the owner of said lot was unknown. The plaintiff denies the allegation in the complaint that the owner of said lot was an unknown owner, and states that the plaintiff was the owner at said time and was well known to be the owner; that he was known to be the owner to R. L. Norris, who served the summons, and to the board of improvement," etc.

But these allegations were not sufficient to constitute a fraud practiced by the successful party in obtaining the judgment. The allegation in the complaint, in the suit to condemn, that the owner was unknown was sufficient to give the court jurisdiction to proceed against the property. He was not a fraud on the court to make this allegation, although it was untrue; for the court had the power to inquire into its jurisdiction and to determine whether or not it was true. The recitals of the decree condemning the lot in controversy to be sold were, in effect, that the owners of the lots were designated as unknown, and that they were unknown to the board of improvement. We must presume, in the face of these allegations, that the court did make inquiry as to its jurisdiction to proceed against the property, and found that it had jurisdiction. In other words, that the complaint alleged that the owners of the lots were unknown, and that such was the fact.

Another ground alleged in the complaint for setting aside the judgment is that no service of summons was had against the plaintiff in the suit or against the lot in question; that the officer who served the...