Cohn v. Little, Civ. No. 968.

• Decision Date: 04 January 1952
• Docket Number: Civ. No. 968.
• Citation: Cohn v. Little, 101 F.Supp. 683 (W.D. Ark. 1952)
• Parties: COHN v. LITTLE et al.
• Court: U.S. District Court — Western District of Arkansas

101 F. Supp. 683

COHN v.LITTLE et al.

Civ. No. 968.

United States District Court W.D. Arkansas, Fort Smith Division.

January 4, 1952.

U. A. Gentry, Little Rock, Ark., L. H. Chastain, Fort Smith, Ark., for plaintiff.

A. A. McCormick, Fort Smith, Ark., for defendants.

JOHN E. MILLER, District Judge.

The facts have been stipulated by the parties and are summarized as follows:

The plaintiff is a citizen and resident of the State of New York.The defendants are citizens and residents of the State of Arkansas.The value of the property involved herein is more than $3,000.00, exclusive of interest and costs.

The property involved, Lot 7 in Block F, Fitzgerald Addition to the City of Fort Smith, Arkansas, was sold to the State of Arkansas for the non-payment of taxes for the year 1942 and was purchased by the plaintiff from the State of Arkansas on January 3, 1946.

At the time of the forfeiture of the property for the non-payment of taxes, the defendant, Ruth Spear Little, was the owner and in actual possession of the property and has been in possession at all times since she became the owner on June 19, 1926.

The sale to the State of Arkansas for non-payment of taxes was duly confirmed by the Sebastian Chancery Court on December 11, 1946.

Among the other taxes levied on the property was a tax of fifteen hundredths mills for fire fighting equipment.At the time this levy was made, the rate of taxation for that purpose was fourteen hundredths mills, but the Quorum Court of Sebastian County erroneously levied fifteen hundredths mills and the County Clerk in extending the taxes followed the levy made by the Quorum Court and levied fifteen hundredths mills.

The real estate tax record prepared by the County Clerk did not have attached thereto the Clerk's Warrant authorizing the County Tax Collector to collect the general taxes therein contained for the year 1942.

The property involved herein was sold en masse at the tax sale along with other property.

The assessed value of the property for tax purposes was $700.00.

The plaintiff duly paid the lawful purchase price for the property when he purchased it from the State of Arkansas and that amount, together with subsequent taxes paid by him with interest at 6%, amounted to $266.85 on November 1, 1951.

The plaintiff is seeking to recover possession of the property.

The defendants deny that the plaintiff is entitled to the possession of the property or that he is the owner thereof by reason of his purchase from the State of Arkansas and, in their answer, allege that the tax sale to the State of Arkansas was void on the grounds (1) that the warrant of the County Clerk was not attached to the tax books at the time they were delivered to the Collector for the collection of taxes, (2) that the property was sold en masse at the tax sale by the Collector, and (3) the levy of the taxes was illegal because of the excessive rate.

The respective attorneys have filed excellent briefs in support of their contentions and, with commendable frankness, the plaintiff admits that the failure of the County Clerk to attach his warrant to the tax books delivered to the Collector invalidates the sale and also admits that the sale of the property en masse was a defect or irregularity as would render the sale voidable.But the plaintiff contends that, since the sale was duly confirmed by the Sebastian Chancery Court on December 11, 1946, these defects in the sale were cured for the reason that they were not such defects or irregularities as go to the power of the State to sell and, therefore, not being defects or irregularities going to the power of the State to sell, they were cured by the confirmation decree.

The defendants contend that the State did not have the power to sell because of the illegal assessment of fifteen hundredths mills for fire fighting equipment instead of the legally authorized rate of fourteen hundredths mills.

In reply to this contention, the plaintiff's attorneys state: "We concede that the inclusion of an illegal tax defeats the power to sell and that such defect is not cured by a confirmation decree, but we do not concede that there was an excessive levy or an excessive amount included in the tax sale in the legal sense."

Thus, the plaintiff contends that, even though the levy was for fifteen hundredths mills when the levy could only have been fourteen hundredths mills legally, the difference in the amount of the tax levied is nominal and trifling and, therefore, the sale was not void.However, the defendants contend that, even though the difference between the tax that could legally have been levied and the tax that was levied is nominal, yet, the levy was illegal and destroyed the power of the State to sell and that, since the power to sell did not exist, the confirmation decree does not validate the sale and that the sale should be declared void and the deed to the plaintiff from the State of Arkansas canceled.

The excessive levy is in fact small and trifling, but the court, in Cooper v. Freeman Lumber Company, 61 Ark. 36-42, 31 S.W. 981, 983, 32 S.W. 494, said: "The smallness of the amount of the excess over the amount due does not, in a tax sale, affect the question, as the maxim, `De minimis non curat lex,' does not apply to tax sales.The provisions of the law made for the protection and benefit of the taxpayer...