Commercial National Bank, Trustee v. Cole Building Co.

• Decision Date: 25 March 1940
• Docket Number: 4-5851
• Citation: Commercial National Bank, Trustee v. Cole Building Co., 200 Ark. 212, 138 S.W.2d 794 (Ark. 1940)
• Parties: COMMERCIAL NATIONAL BANK, TRUSTEE, v. COLE BUILDING COMPANY
• Court: Arkansas Supreme Court

138 S.W.2d 794

200 Ark. 212

COMMERCIAL NATIONAL BANK, TRUSTEE, v. COLE BUILDING COMPANY

4-5851

Supreme Court of Arkansas

March 25, 1940

Appeal from Pulaski Chancery Court; Frank H. Dodge, Chancellor reversed.

Decree reversed and cause remanded.

S L. White and U. A.Gentry, for appellant.

Beloit Taylor and E. Chas. Eichenbaum, for appellee.

SMITHJ. HUMPHREYS and MEHAFFY, JJ., dissent.

OPINION

SMITH, J.

This appeal presents the question of the validity and effect of a decree of confirmation rendered pursuant to the provisions of act 119 of the Acts of 1935, p. 318.It is not questioned that this confirmation decree was rendered after full compliance with the provisions of act 119, supra, and that it purported to confirm the title acquired by the state upon the certification of the forfeiture and sale to the state for the nonpayment of the taxes due on the lots here involved.

Appellant purchased the lots from the state, after the rendition of the confirmation decree and filed a petition to confirm its title thus acquired against appellees, who, it was alleged, "claim title to and assert an interest therein adverse to plaintiff, the exact nature of the interest being unknown to plaintiff, but which constitutes a cloud on plaintiff's title."

A demurrer and a motion to dismiss for want of jurisdiction were filed, and overruled.Thereafter, appellees, who were the defendants, and certain interveners in the case, filed an answer and cross-complaint, in which they alleged that the sale of the lots to the state was void for six different reasons, the only one now insisted upon being that the tax sale was held on a day not authorized by law.

A stipulation was filed, which recites the delinquency and sale of the lots and certification of the sale to the state after the expiration of the period of redemption, the lots not having been redeemed.It was further stipulated "That none of said lands, or any part thereof, is occupied by any one."But, notwithstanding this stipulation, testimony was offered that defendants had control of the lots, were asserting title thereto, and had authorized an agency to sell them.

The decree here appealed from recites the rendition of the confirmation decree on April 28, 1938, but upheld the right of defendants and interveners to redeem therefrom, for the reason that the tax sale was held on a day not authorized by law, and therefore the confirmation was ineffective to cure the state's tax title.

The jurisdiction of the court to entertain the cause is questioned, for the reason that the suit is, in effect, a possessory action, and should have been brought at law.In support of that contention the case of Pearman v. Pearman,144 Ark. 528, 222 S.W. 1064, is cited, in which it was said: "The equity jurisdiction to quiet title, independent of statute, can only be invoked by a plaintiff in possession, unless his title be merely an equitable one.The reason is that where the title is a purely legal one and some one else is in possession, the remedy at law is plain, adequate and complete, and an action of ejectment can not be maintained under the guise of a bill in chancery.In such case the adverse party has a constitutional right to a trial by jury.(Citing cases.)"

Here, however, the lots are vacant and the property is not occupied by any person against whom a suit in ejectment could be brought.Appellant is not asking possession.It alleges that appellees claim title of a nature not disclosed in the record in this case, and that the assertion thereof constitutes a cloud upon appellant's title, and the relief prayed is that this cloud be removed and the validity of appellant's title be adjudged and decreed.

The opinion in the recent case of Patterson v. McKay,199 Ark. 140, 134 S.W.2d 543, affords authority for the institution of this suit; and so, also, does the case of Gibbs v. Bates,150 Ark. 344, 234 S.W. 175.In the case last cited Mrs. Gibbs brought suit to quiet her title to a tract of land against Mrs. Bates who answered that she claimed title thereto by adverse possession.Mrs. Bates asked no affirmative relief, but prayed only that the relief asked by Mrs. Gibbs be denied.In denying the relief prayed, the opinion quoted from the case of Pearman v. Pearman, supra, the language above quoted from that opinion.But it was further said in the case of Gibbs v. Bates that "of course, when the defendant files a cross-bill, founded on matters clearly cognizable in equity, this supplies any defect in jurisdiction and places the court in possession of the whole case, and imposes upon it the duty of granting relief to the party entitled to it.The original bill and cross- bill then became but one cause, and a court of chancery takes jurisdiction, when allegations of the cross-bill supply the defects of the original bill.Pearman v. Pearman, and cases cited."

Here, appellees, unlike Mrs. Bates, asked the affirmative relief that her own title be quieted, and this prayer would supply the defects of the original bill, if any there were.

We conclude, therefore, that the court had jurisdiction to determine the real question in the case, which is that of the validity and effect of the confirmation decree, as it is conceded that appellant had title to the lots in question, if the confirmation decree is valid.The insistence is that the decree is invalid for the reason that a sale on a day not authorized by law was made without power to sell, and that this was a defect which the confirmation decree could not cure.

In the early case of Wallace v. Brown,22 Ark 118, 76 Am. Dec. 421, a tract of land on which the owner had paid the taxes was sold for the nonpayment of the taxes.The purchaser at the tax sale secured a confirmation of the sale, and brought ejectment against the owner who had paid the taxes, and who defended upon the ground that the land had been sold for taxes not due upon it.It was said in the opinion in that case that this was a sale without power, and was a fraud upon the owner's rights, and that the court would not be slow to grant him relief in a direct and appropriate...