Coulter v. Payne

• Decision Date: 10 December 1962
• Docket Number: No. 5-2821,5-2821
• Parties: Murray Whitfield COULTER et al., Appellants, v. George PAYNE, Appellee.
• Court: Arkansas Supreme Court

Page 446

362 S.W.2d 446

235 Ark. 850

Murray Whitfield COULTER et al., Appellants, v. George PAYNE, Appellee.

No. 5-2821.

Supreme Court of Arkansas.

Dec. 10, 1962.

Gentry & Gentry, Little Rock, for appellants.

L. B. Smead, Camden, W. C. Medley, Hampton, for appellee.

HARRIS, Chief Justice.

Harris Brothers, a partnership, was engaged in the mercantile business in Calhoun County, and had acquired a considerable acreage of farm and timber lands. The acreage herein involved was owned by Harris Brothers at the time the partnership was adjudged a bankrupt in January, 1932. In July, 1933, the trustee in bankruptcy, in compliance with orders of the referee, sold the lands, at private sale, to E. W. Prothro; in August, Prothro conveyed the lands to Murray Whitfield Coulter and George Prothro Coulter (one and three years old respectively at the time), the deed being recorded in August, 1940. However, on June 13, 1932, the lands were sold to the State of Arkansas by the Collector of Calhoun County for the taxes assessed for 1931. The lands not being redeemed, the Collector of Calhoun County, on November 22, 1934, certified said lands to the State of Arkansas. On November 27, 1935, the Commissioner of State Lands conveyed same to appellee, George Payne. Testimony reflects that Payne went into possession, fenced the lands in January, 1936, and farmed same from 1936 through 1938. According to the evidence, Payne has paid the taxes each year since the purchase.

Appellants instituted this suit in 1952, praying that title be quieted and confirmed in them, alleging inter alia that the 'sale was void for the further reason that the certificate of the County Clerk, certifying to the publication of the notice of the sale, was made on the day of the sale and not before the day of the sale.' The trial court, on hearing, dismissed the complaint on two grounds, ¹ one being that the failure of the clerk to attach his certificate to the delinquent tax list before the date of sale was a mere irregularity, and had been cured by Act 142 of 1935, which act was in effect at the time the property was conveyed by the state to appellee. From the decree dismissing appellants' complaint, comes this appeal.

Appellants' sole effort in this appeal is directed to the proposition that this court should overrule the case of Coulter v. Anthony (1957), 228 Ark. 192, 308 S.W.2d 445, which case, appellants contend, overrules numerous prior decisions of this court. In Coulter v. Anthony, we held that the clerk's failure to execute his certificate showing the publication of the notice of the tax sale until the day of sale (rather than before the sale, as required by the law) was a mere irregularity, which was cured by Act 142 of 1935. Incidentally, the lands here in question, were sold in the same 1932 tax sale as the lands involved in Coulter v. Anthony. Act 142 of 1935 provided,

'Whenever the State and County Taxes have not been paid upon any real or personal property within the time provided by law, and publication of the notice of the sale has been given under a valid and proper description, as provided by law, the sale of any real or personal property for the non-payment of said taxes shall not hereafter be set aside by any proceedings at law or in equity because of any irregularity, informality or omission by any officer in the assessment of said property, the levying of said taxes, the making of the assessor's or tax book, the making or filing of the delinquent list, the recording thereof, or the recording of the list and notice of sale, or the certificate as to the publication of said notice of sale; provided, that this Act shall not apply to any suit now pending seeking to set aside any such sale, or to any suit brought within six months from the effective date of this Act for the purpose of setting aside any such sale.'

Though repealed in 1937, the act was in full force and effect at the time Payne purchased the lands in question from the state.

Appellants' argument that Coulter v. Anthony overruled numerous cases is erroneous, for if the cases cited in their brief were overruled, such 'overruling' occurred back in 1937, when the leading case of Carle v. Gehl was decided. See 193 Ark. 1061, 104 S.W.2d 445. There, we held that various requirements of the statute (such as the publication of the notice of sale) are jurisdictional essentials, but that the legislature had the power to dispense with certain other requirements. Failure to perform the latter was held to be a mere irregularity, cured by Act 142. The court said,

'Beyond question it is within the power of the Legislature to provide for the rules by which the foregoing exercise of power may be made both as to time and form, and, having the power in the first place to make such rules, indubitably the Legislature has the power to alter or dispense with the same. Act No. 142 merely provides that irregularities in the assessment or levy should not be ground for setting aside the tax sale. The same provision is made for irregularities in making and filing a delinquent list, the recording of the list, and notice of sale or of the certificate of the publication...