Collier v. Smith

• Decision Date: 04 February 1918
• Docket Number: 136
• Citation: 200 S.W. 1008,132 Ark. 309
• Parties: COLLIER v. SMITH
• Court: Arkansas Supreme Court

200 S.W. 1008

132 Ark. 309

COLLIER v. SMITH

No. 136

Supreme Court of Arkansas

February 4, 1918

Appeal from Jefferson Chancery Court; John M. Elliott, Chancellor reversed.

Decree reversed and cause remanded.

Coleman & Gantt, for appellant.

1. The tax sales were regular and made according to law. The commissioner's deed was duly acknowledged and recorded. Kirby's Digest, §§ 760-1. It was prima facie evidence of the legality and regularity of the sale. The decree and deed were duly approved and confirmed and there were no irregularities in the road district suit. 28 N.E. 57.

2. The attack is a collateral attack on the decree of the court and every presumption is in favor of jurisdiction and regularity. 121 Ark. 474; 101 Id. 390; 50 Id. 188; 55 Id. 398. Mere errors and irregularities are no grounds for vacating a judgment on collateral attack. 118 Ark. 449. The act (Acts 1911, No. 248) was complied with in all things and the court had jurisdiction and the matter is concluded by the decree. 16 R. C. L. 32-34; 2 Wall. 210.

3. Appellant had the right to purchase at the tax sale and was under no duty to pay the taxes. 98 Ark. 455; 74 Id 253; 53 Id. 428; 37 Ark. 1352.

4. Appellees had no right to redeem. Acts 1911, No. 248 § 7. They had only one year to redeem and that had passed. There is no exception in favor of minors. Acts 1911, p. 773; Acts 1915, No. 43. The act does not act retrospectively nor divest vested rights. 5 Ark. 217; 68 Id. 333; 49 Id. 190; 43 Id. 424; etc.

Rowell & Alexander, for appellees.

1. The decree condemning the land to sale was void on account of the failure of the collector to make a return of delinquent taxes for 1912 and the right to redeem existed under Act 43, 1915.

2. The decree was subject to collateral attack for want of jurisdiction. 83 Ark. 532; 60 Id. 374; 98 Id. 457.

3. Appellees had the right to redeem. Act 43, 1915. It was retroactive. 128 Ark. 113, 90 S.W. 600, etc.

OPINION

HUMPHREYS, J.

On the 7th day of January, 1907, appellees purchased the N.W. 1/4 of the N.W. 1/4, Sec. 14, T. 6 S. R. 10 W., in Jefferson County Arkansas. They permitted the land to forfeit in 1912 for the nonpayment of the state and county taxes assessed against it in 1911, and at the delinquent tax sale, Thomas J. Collier appellant, purchased the land on June 10, 1912, and procured a tax deed under said purchase on December 7, 1914. The land was proceeded against under Act 248 of the Acts of Arkansas, 1911, for non-payment of 1912 taxes of Road Improvement District No. 3, which resulted in a decree, of date September 18, 1913, subjecting the land to sale to satisfy the lien for said road improvement district taxes. The decree recited the performance of all statutory requirements necessary to give the chancery court jurisdiction in said road district suit.

Pursuant to the decretal order, the land was sold by the commissioner on October 16, 1913, and purchased by Thomas J. Collier, the appellant herein. The commissioner filed his report, and the sale was confirmed and deed ordered. On October 31, 1913, thereafter, the commissioner presented his deed to the court for approval and the deed was examined, approved and acknowledged in open court and delivered to the purchaser, Thomas J. Collier. Immediately after the purchase by appellant under the tax forfeiture of 1911, he assessed the property in his own name and thereafter paid all state, county and general, and special improvement district taxes, on said real estate. During all this time, the appellees remained in possession and enjoyed the free use of the property.

On March 16, 1916, appellant brought suit in ejectment against appellees in the Jefferson Circuit Court, asserting title and right of possession under his tax deeds. Appellees, through their father and guardian, J. W. Smith, filed answer, challenging the validity of both tax deeds. The tax sale and the tax deed issued by the clerk of the county were challenged for the alleged reason that no taxes for the year 1911 were levied on the land by the levying court of Jefferson County; and the commissioner's deed was challenged on the ground that the collector never returned the land as delinquent for the taxes of 1912 to the commissioners of Road Improvement District No. 3.

They assert that the tax deeds were clouds upon their title and prayed that the cause be transferred to the chancery court and that said deeds be canceled and held for naught; and prayed in the alternative that if the commissioner's deed were sustained that they be permitted to redeem under Act No. 248 of the General Assembly of the State of Arkansas, 1911; but that if the time for redemption under that act had expired, that they be permitted to redeem under Act No. 43 of the General Assembly of the State of Arkansas, 1915, approved February 9, 1915.

The cause was transferred to the chancery court and there heard upon the pleadings, agreed statement of facts, depositions and documentary evidence, from which the chancellor found that appellees, being minors, had a right to redeem the land in controversy from the tax sale under the tax forfeiture of 1911; and that the collector failed to return the lands as delinquent for the special taxes of 1912 to the commissioners of said road district, and for that reason the chancery court had no jurisdiction to condemn and order a sale of the lands for a tax of Road Improvement District No. 3 in Jefferson County, Arkansas; and also found that Thomas J. Collier did not purchase at the commissioner's sale to strengthen his title but was of necessity forced to purchase in order to protect his title acquired under the forfeiture of 1911, and that the purchase amounted to nothing more than a payment of taxes due Road Improvement District No. 3.

In accordance with the findings aforesaid, the court then canceled both tax deeds and required the appellees to refund to Thomas J. Collier the aggregate sum of $ 81.70, together with interest at the rate of 10 per cent. per annum from the date of the respective payments until paid, that being the total amount the said Collier had expended in procuring his tax titles and paying general and special taxes on said land thereafter.

It is not seriously contended by appellees that the sale for the taxes of 1911 for general, state and county purposes was void, but they seem contented with their conceded right to redeem from that sale. It would not benefit them to exercise their right of redemption, however, if they can not successfully attack or redeem from the sale of the land for the 1912 taxes assessed by said Road Improvement District No 3 against it. This latter sale was made on the 16th day of October, 1913, by a commissioner under the provisions of Act 248, Special and Private Acts of 1911. The jurisdiction to enforce delinquent taxes due said district was placed in the chancery court by the act. The sale was made through the chancery court. The decree rendered for the sale of the lands recited on its face all necessary jurisdictional requirements. This is a collateral, and not direct, attack upon the decree of a court having jurisdiction to render such a decree. No dispute exists between the parties as to the character of the attack. The dispute between them is whether the decree can be collaterally attacked by showing that the collector reported the lands delinquent for 1911, instead of 1912. The assessment list furnished the collector by the Board of the Road District was an assessment for taxes of 1912, but when he made his report, the sheet upon which it was made reported the lands delinquent for 1911. The suit, however, was brought for delinquent taxes of 1912. The taxes for 1912 were delinquent and had not been paid. This was a matter of defense, if at all, available in the original suit, but not on collateral attack. Actual payment of taxes can not avail on collateral attack where the land was sold by decree of court in accordance with the...