Cooper v. Freeman Lumber Co.

• Decision Date: 29 June 1895
• Citation: 31 S.W. 981
• Parties: COOPER v. FREEMAN LUMBER CO. et al.
• Court: Arkansas Supreme Court

31 S.W. 981

COOPER v. FREEMAN LUMBER CO. et al.

Supreme Court of Arkansas.

June 29, 1895.

Appeal from Ouachita chancery court; Charles W. Smith, Chancellor.

Suit by Henry M. Cooper against Freeman Lumber Company and others to cancel a tax deed. Defendants had judgment, and plaintiff appeals. Reversed.

On the 12th of August, 1892, the appellant brought this suit in equity against the appellees to set aside a tax sale and cancel a tax deed of appellees to eight tracts of land sold in the year 1887 for the taxes of 1886. The complaint alleges that each of said tracts of land was sold by the tax collector for certain amounts, as costs, not due thereon, — i. e. for 25 cents due the clerk for a certificate of purchase, and 10 cents each for transferring each tract on the books to the name of the purchaser, — and contends that the record of the sale shows that this was done. The answer denies that these tracts were sold unlawfully, and avers that these amounts were not included in the amounts for which each tract was sold. The answer also sets up the statute of limitation. The court found against the plea of limitation. But parol testimony was admitted by the court to show that the items named were not included in the amounts for which these lands were sold; allowing the clerk, who kept the record of the sale, and the sheriff, who, as collector, made the sale, to testify that they were not, over the objection of the appellant, to which he at the time excepted on the ground of incompetency. The appellant contends that the record of the sale required by the statute to be kept by the clerk, to be made by him after the sale, is the evidence which must control in determining the amounts and items for which each tract was sold, and that this record, being required by law to be kept by the clerk, cannot be contradicted by parol evidence.

H. King White, W. T. Wooldridge, and Rector & Collins, for appellant. Gaughan & Sifford and Wells & Williamson, for appellees.

HUGHES, J. (after stating the facts).

Section 5763 of Mansfield's Digest (now section 6606 of Sandels' & Hill's Digest) provides, after prescribing the notice to be attached to the delinquent list of lands to be advertised for sale, that "the clerk of the county court shall record said list and notice in a book to be kept by him for the purpose, and shall certify at the foot of said record, stating in what newspaper said list was published," etc. This section further requires that said list shall show the taxes, penalty, and costs due upon each tract, and that it shall be stated in said notice that each tract, or so much thereof as will be necessary to pay the same, will be sold for the taxes, penalty, and costs due thereon, unless the same are paid before the day of sale. Section 5769 of Mansfield's Digest (now section 6612 of Sandel's & Hill's Digest) provides that: "The clerk of the county court shall attend all such sales of delinquent lands * * * made by the collector of the county, and shall make a record thereof in a substantial book therein describing the several tracts of land * * * as the same shall be described in the advertisement aforesaid, stating what part of each tract of land * * * was sold, the amount of taxes, penalty and cost due thereon and to whom sold. And he shall record in a separate book kept for that purpose each tract of land sold to the state, together with the taxes, penalty and cost due thereon. Immediately after such sale, the clerk of the county court shall make out and certify to the auditor a copy of each of said sale lists as recorded in said book." It is contended for the appellees that the record of the list and notice required to be kept by the section first named is the record of the sale, to which we must look to determine the amount of the taxes, penalty, and cost for which each tract of land was sold. But evidently this is not the case, as the record is required to be made before the sale, and therefore cannot be a record of what was done at the sale. It is only the record of the delinquent list, the notice of sale, and the amount of taxes, penalty, and cost for...