Clay v. Bilby

• Decision Date: 09 January 1904
• Citation: 78 S.W. 749
• Parties: CLAY et al. v. BILBY.
• Court: Arkansas Supreme Court

78 S.W. 749

CLAY et al. v. BILBY.

Supreme Court of Arkansas.

January 9, 1904.

Appeal from Arkansas Chancery Court; John M. Elliott, Chancellor.

Suit by Matthew Clay and others against J. S. Bilby. From a decree dismissing the complaint, plaintiffs appeal. Affirmed.

Lewis & Ingram, W. A. Carpenter, and Parker & Parker, for appellants. John F. Park, James E. Gibson, and John B. Jones, for appellee.

BATTLE, J.

Matthew Clay, D. D. Saunders, and E. V. McFarland instituted a suit in the Arkansas chancery court against J. S. Bilby, and asked the court to quiet title to certain land by setting aside a decree condemning the same to be sold under what is generally known as the "Overdue Tax Act," and by setting aside the sale thereof in pursuance of such decree. They alleged in their complaint that they were the owners of the land, and, without showing the proceedings of the court under which he claims title, stated that the defendant "is claiming or pretending to claim the title to said land by virtue of what is known as an `overdue tax deed,'" and alleged in the same vague and indefinite way "that said overdue tax title is void * * * because the chancery court of Arkansas county, Arkansas, had no jurisdiction to render the alleged decree upon which the said title is based; that there was no publication or proof of publication of the warning order therein, as the law requires; and that there was absolutely no notice of the * * * pendency of said cause, either personal or constructive."

The defendant answered, and denied that plaintiffs were the owners of the land, and admitted "that he acquired title through a sale under overdue tax proceeding; that the land was forfeited to the state, and on August 3, 1882, a complaint was filed, charging that taxes were due and the forfeiture void, and praying a lien, and summons was issued and served upon the State Auditor; that a warning order was issued, recorded * * * and duly published"; that the circuit court on the 9th day of February, 1883, decreed that the forfeiture to the state was void, and that certain taxes were due upon the land, and found the amount of the same and penalty and costs to be $9.16, "and ordered and decreed the same to be a lien upon the land, and that the same be sold unless [the taxes, penalty, and costs] were paid within a day named in the decree; and appointed J. J. McEvoy commissioner to sell the land and execute the decree"; "that the lien was not paid, and the commissioner, after advertising the land according to law and the decree, sold the same at public sale for the amount of said lien and costs, and at the sale said lands were purchased by John T. Burns for the amount of the decree and costs, and said sale was duly approved by the court; and that said Burns sold and assigned his certificate of purchase issued to him by the commissioner to the Arkansas Real Estate Company, to which a deed was issued September 22, 1885, and said company sold said land to defendant by deed dated May 11, 1887."

And the defendant further alleged "that the plaintiffs have exercised no ownership over said land for thirty-eight years, and abandoned the land, and their claim is stale, and cannot be enforced in a court of equity."

The court, after hearing the cause upon its merits, dismissed the complaint for want of equity, and the plaintiffs appealed.

The land in controversy was forfeited to the state of Arkansas on account of the non-payment of the taxes assessed against the same. For 23 years no taxes were paid thereon. On the 3d day of August, 1882, a complaint was filed in the Arkansas circuit court pursuant to an act entitled "An act to enforce the payment of overdue taxes," approved March 12, 1881 (Acts 1881, p. 63), in which it was alleged that the forfeiture was void, and the plaintiff asked that the land be sold to pay the taxes due thereon. An order requiring all persons having any right or interest in the land to appear and show cause, if any they could, why a lien shall not be declared on the same for unpaid taxes, and why it should not be sold for non-payment thereof, in legal form, was entered on the record. A copy of it was published, and the following proof of the publication thereof was filed:

"I, J. P. Pointer, one of the publishers of the Arkansas Gleaner, a newspaper published in the State and county of Arkansas, do hereby solemnly swear, that the annexed and foregoing advertisement was published in said newspaper three weeks consecutively, to wit: November 22d and 29th, and December 6th, 1882. J. P. Pointer, One of the Publishers of the Arkansas Gleaner.

"Sworn to before me, the 4th day of January, 1883. J. J. McEvoy, Clerk."

On the 9th day of February, 1883, the court set aside the forfeiture, the same being illegal, and ordered the land sold to pay the taxes on the same, and appointed a commissioner for that purpose. The land was sold on the 17th day of May, 1883, to John T. Burns, and the sale was approved by the court. On the 14th of April, 1899, this suit was brought to set the sale aside and to quiet title; lacking 1 month and 3 days of being 16 years after the sale was made.

The appellants failed to show that they had any meritorious defense in the suit instituted under the overdue tax act. They do not allege that the taxes for which the land was sold were illegal or paid. Not a single ground for equitable interposition appears. State v. Hill, 50 Ark. 458, 8 S. W. 401. Without one palliating excuse, they show themselves guilty of the grossest negligence. They knew their land was subject to taxation, and liable to be sold if the taxes were not paid, yet they waited 38 years before they offered to pay taxes. There is nothing in their case "to call forth a court of equity into activity."

But appellants say that the decree rendered in the suit instituted under the overdue tax act was absolutely void, because, in the affidavit filed to prove publication of the warning order, the affiant did not swear that he was a publisher of the Arkansas Gleaner, the newspaper in which it was published, and that such newspaper was printed in the county named in the affidavit, having a bona fide circulation therein for one month before the date of the first publication of the warning order, and that it should be treated as void upon collateral attack. Is this true?

The subject of impeachment of judgments of courts of competent jurisdiction was fully and well considered in Boyd v. Roane, 49 Ark. 397, 5 S. W. 704. In that case the court held that "since the enactment of the statute [Mansf. Dig. § 5201] declaring all judgments pronounced by any of the courts of this state against any one without notice absolutely void, the doctrine laid down in Borden v. State, 11 Ark. 519 , that the judgment of a superior court, rendered without notice, is not void, but only voidable, has been adhered to so often that it has become, in its application to analogous cases, a rule of property not to be disturbed by the courts"; that the statute applies to judgments pronounced in adversary suits, either in law or in equity; that such judgments without notice are absolutely void; that, in case of domestic judgments collaterally attacked, the question of notice or no notice must be tried by the court upon an inspection of the record only; and that, in the event the record is silent as to notice, the presumption is that notice was given, and this presumption cannot be contradicted. McLain v. Duncan, 57 Ark. 53, 20 S. W. 597; McConnell v. Day, 61 Ark. 474, 33 S. W. 731.

The same rule has been substantially laid down by the courts of last resort in the following states: California, Maine, Michigan, Minnesota, Illinois, New Jersey, Massachusetts, Tennessee, South Carolina, Washington, Kentucky, Connecticut, Vermont, Missouri, and Texas. 1 Bailey on Jurisdiction, §§ 168, 169, 172a, 172b, 172c, and cases cited.

In Settlemier v. Sullivan, 97 U. S. 444, 448, 24 L. Ed. 1110, Mr. Justice Field, speaking for the court, said: "We do not question the doctrine that a court of general jurisdiction, acting within the scope of its authority — that is, within the boundaries which the law assigns to it with respect to subjects and persons — is presumed to act rightly, and to have jurisdiction to render the judgment it pronounces, until the contrary appears. But this presumption can only arise with respect to jurisdictional facts concerning which the record is silent. It cannot be indulged when the evidence respecting the facts is stated, or averments respecting them are made. If the record is silent with respect to any fact which must have been established before the court could have rightly acted, it will be presumed that such fact was properly brought to its knowledge. But if the record give the evidence or make an averment with respect to a jurisdictional fact, it will be taken to speak the truth, and the whole truth, in that regard; and no presumption will be allowed that other and different evidence was produced, or that the fact was otherwise than averred. `If, for example,' to give an illustration from the case of Galpin v. Page, 18 Wall. 366 , `it appears from the return of the officer or the proof of service contained in the record that the summons was served at a particular place, and there is no averment of any other service, it will not be presumed that service was also made at another and different place; or, if it appear in like manner that the service was made upon a person other than the defendant, it will not be presumed, in the silence of the record, that it was made upon the defendant also.'" Applegate v. Lexington & Carter County Mining Co., 117 U. S. 255, 270, 6 Sup. Ct. 742, 29 L. Ed. 892.

But this is not true in case of service by publication. In that case, no statute forbidding, parol evidence may be received to prove publication of notice; and, if the decree or judgment does not exclude the conclusion, the presumption is that sufficient and competent...