Cooper v. Freeman Lumber Co.

• Court: Arkansas Supreme Court
• Writing for the Court: HUGHES, J.
• Citation: Cooper v. Freeman Lumber Co., 31 S.W. 981, 61 Ark. 36 (Ark. 1895)
• Decision Date: 29 June 1895
• Parties: COOPER v. FREEMAN LUMBER COMPANY

31 S.W. 981

61 Ark. 36

COOPER v. FREEMAN LUMBER COMPANY

Supreme Court of Arkansas

June 29, 1895

Appeal from Ouachita Circuit Court in Chancery CHARLES W. SMITH Judge.

STATEMENT BY THE COURT.

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 twenty-five cents due the clerk for a certificate of purchase, and ten 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.

Decree reversed and cause remanded.

H. King White, W. T. Wooldridge, and Rector & Collins, for appellant.

1. The tax sale was void, because the amount for which the lands were sold included the twenty-five cents for certificate of purchase. 56 Ark. 93.

2. Parol testimony was not admissible to contradict the record required to be kept by law, or supply that which is required to appear of record. 34 F. 706; 51 Ark. 42; 55 id. 218; Wade on Notice, sec. 1120; 4 McLean, 138; 20 Vt. 49; 32 Wis. 394; 68 Me. 316; 37 Miss. 573; 8 Ohio 114; Desty, Tax. 1894 Cooley, Tax. (2 ed.) 480.

3. Appellant is not barred. Meritorious defenses, fundamental and jurisdictional in their character, are not cut off by the statute. 46 Ark. 109; 49 id. 266; 55 Ark. 196; 13 Mich. 330; 11 Minn. 480; Cooley, Const. Lim. 449, note; 21 Ark. 9; 32 id. 353; 55 Ark. 550-4.

Gaughan & Sifford and Wells & Williamson, for appellee.

1. Parol evidence was admissible to show that the lands were sold only for the legal taxes, penalty and costs. If a record shows more than the law requires it to show, it is mere surplusage, and parol evidence is admissible to explain and show it to be surplusage. A tax deed or certificate of purchase is only prima facie evidence, capable of being disproved by competent evidence. 32 Ark. 131. The record made by the clerk after the sale is not in fact a record of what amount of taxes, penalty and costs the land sold for, and does not purport to be and is not required to be so by law. Mansf. Dig. sec. 5769. It is only the record of the amount due after sale, and it correctly shows the twenty-five cents and ten cents as due in the column of costs. Ib. secs. 5773, 5277, 5779.

2. The appellant is barred. Mansf. Dig. sec. 5791. Citing and reviewing: 32 Ark. 131; 46 id. 96; 55 id 192; 20 id. 508; Ib. 542; 21 id. 370; 53 id. 404.

HUGHES J. Bunn, C. J. BATTLE, J., dissenting.

OPINION

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 Sandels & 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, to be 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 which the collector proposes to sell each tract, unless the same are paid before the day of sale. It follows that the sales of these tracts were void, under the decision in Goodrum v. Ayers, 56 Ark. 93, 19 S.W. 97, where it is held that a sale for twenty-five cents too much was void. We are constrained by the record to find that these items of twenty-five cents and ten cents were included in the amounts for which each of these tracts was sold.

Does the act of March 31, 1883 (Sandels & Hill's Digest, sec. 6625), cut off this defense. The section is as follows: "Section 6625. In all controversies and suits involving title to real property, claimed and held under and by virtue of a deed executed substantially as aforesaid by the clerk of the county court, the party claiming title adverse to that conveyed by such deed shall be required to prove, in order to defeat the said title, either that the said real property was not subject to taxation for the year (or years) named in the deed, or that the taxes had been paid before the sale, that the property had been redeemed from the sale according to the provisions of this act, and that such redemption was had or made for the use and benefit of persons having the right of redemption, under the laws of this state; or that there had been an entire omission to list or assess the property, or to levy the taxes, or to give notice of the sale, or to sell the property. But no person shall be permitted to question the title acquired by a deed of the clerk of the county court, without first showing that he, or the person under whom he claims title to the property, had title thereto at the time of the sale, or that title was obtained from the United States or this state after the sale, and that all taxes due upon the property have been paid by such person, or the person under whom he claims title as aforesaid. Provided, In any case where a person had paid his taxes, and, through mistake (or otherwise) by the collector, the land upon which the taxes were paid was afterwards sold, the deed of the clerk of the county court shall not convey the title. Provided, further, In all cases where the owner of lands sold for taxes shall resist the validity of such tax title, such owner may prove fraud committed by the officer selling said lands or in the purchaser, to defeat the same, and, if fraud is so established, such sale and title shall be void."

Under the decisions of this court in Cairo & Fulton R. Co. v. Parks, 32 Ark. 131, and in Radcliffe v. Scruggs, 46 Ark. 96, a substantial "meritorious defense" against a claimant under a purchase at tax sale cannot be denied or cut off by the legislature.

In Radcliffe v. Scruggs, the court, by Mr. Justice Smith, said: "And by 'meritorious defense' we mean any act of omission of the revenue officers in violation of law and prejudicial to his (the former owner's) rights or interests, as well as the jurisdictional and fundamental defects which affect the power to levy the tax or sell for the non-payment. * * * * Our legislature and previous decisions have always distinguished class of defects (mere irregularities or informalities) which have no tendency to injuriously affect the tax payer, and substantial defects, such as go to the jurisdiction of the levying court to levy a particular tax or of the power of the officer to sell for non-payment or the omission of any legal duty, which is calculated to prejudice the land owner."

Can it be doubted--in fact, is it not very clear--that to sell a land owner's land for an amount not due upon. it, and never levied upon it, and which, if levied, was unlawfully levied, has a direct tendency to injuriously affect his interest, and the power of the officer to sell for non-payment? It is obvious that the defenses against the tax sales in this case are "meritorious," as that term is defined in Radcliffe v. Scruggs, and by the weight of authority, and that the legislature cannot deprive the property owner of...