Faulkner v. Binns

• Decision Date: 12 May 1941
• Docket Number: 4-6343
• Citation: 151 S.W.2d 101,202 Ark. 457
• Parties: FAULKNER v. BINNS, TRUSTEE
• Court: Arkansas Supreme Court

151 S.W.2d 101

202 Ark. 457

FAULKNER v. BINNS, TRUSTEE

4-6343

Supreme Court of Arkansas

May 12, 1941

Appeal from Phillips Chancery Court; A. L. Hutchins, Chancellor reversed.

Decree reversed and cause remanded.

Brewer & Cracraft, for appellant.

Jo M. Walker, for appellee.

OPINION

SMITH J.

Appellee, as trustee, acquired title to lot 84 and the south 64 feet of lot 85 in that part of the city of Helena known as Old Helena, in 1928, on which he ceased to pay taxes subsequent to those for the year 1933. On November 4, 1935 the property was sold to the state for the taxes due thereon for the year 1934, and this sale was confirmed in a proceeding for that purpose brought under the authority of act 119 of the Acts of the 1935 session of the General Assembly. The confirmation decree was rendered November 28, 1938. On December 29, 1939, appellant purchased the lots from the state.

On March 22, 1937, a decree was rendered pursuant to which the lots were sold for the nonpayment of certain improvement district taxes. The lots were sold to the improvement district under this decree, and appellant Faulkner purchased them from the improvement district January 16, 1940.

Suit was filed by appellee, trustee, March 4, 1940, in which he attacked both the deed from the state to appellant and the deed to appellant from the improvement district, and prayed the right to redeem from the sale to the state and the improvement district. Both sales were held void, and the right of redemption was accorded, from which decree is this appeal.

We are of the opinion that the defects in the sale for the 1934 general taxes were cured by the confirmation decree, and that appellant acquired title to the lots under his deed from the state. Under this view it is unimportant to consider whether appellant may not also have acquired title under the deed from the improvement district, and we shall, therefore, discuss only the decree confirming the sale to the state.

The court found "that on account of the failure of the clerk of Phillips county to extend the taxes levied on said premises as required by law, and on account of the failure of the clerk to attach to the list of lands returned delinquent, his certificate, stating in what newspaper and for what length of time notice of sale of such lands was given, as required by law, the sale of said premises to the state was void for want of power and authority to sell the same."

For the affirmance of this decree appellee cites and relies upon the cases of Mixon v. Bell, 190 Ark. 903, 82 S.W.2d 33; Lambert v. Reeves, 194 Ark. 1109, 110 S.W.2d 503, 112 S.W.2d 33, and Wright v. Davis, 195 Ark. 292, 111 S.W.2d 565. The first of these--the case of Mixon v. Bell--held that the confirmation decree did not cure the failure to properly extend the taxes on the tax record; and the other two cases are to the same effect. There had been a confirmation of those tax sales under the authority of act 296 of the Acts of 1929.

For the apparent purpose of strengthening the confirmation act of 1929, and to validate tax sales which a confirmation decree under that act did not effect, the General Assembly passed, at its 1935 session, act 119, another confirmation act, which we have since had several occasions to construe.

In the first of these cases construing act 119--that of Fuller v. Wilkinson, 198 Ark. 102, 128 S.W.2d 251--we said that it was the legislative purpose to cure all defects in tax sales which did not relate to the power to sell, and that the effect of a confirmation decree rendered in accordance with the provisions of act 119 is to cure all tax sales where there was not lacking the power to sell, that is, all sales for taxes which were due and had not been paid. That holding was reaffirmed in the cases of Angels v. Redmon, 198 Ark. 980, 132 S.W.2d 170, and Dansby v. Weeks, 199 Ark. 497, 135 S.W.2d 62.

The case of Berry v. Davidson, 199 Ark. 276, 133 S.W.2d 442, would be decisive of this case if the others were not. That case reviews the effect of confirmation decrees rendered under act 296, as distinguished from those rendered under act 119, and it would be a work of supererogation to again review the cases there reviewed. The review of the cases on the subject and the distinction between them made in the case of Berry v. Davidson was intended to put the subject at rest and to definitely state the effect of confirmation decrees rendered pursuant to act 119. It was said in this Berry v. Davidson case that "If there are any taxes levied or assessed against the land, however defectively that may have been done and when the taxes shall not have been paid, the state has the power to sell." And, as has been said, in all the cases arising under act 119 the confirmation cures all errors in the sale where the power to sell exists.

The later case of Commercial National Bank v. Cole Bldg. Co., 200 Ark. 212, 138 S.W.2d 794, points out the difference in the effect of confirmation decrees rendered pursuant to act 119, as distinguished from decrees rendered under act 296, and so, also, do the cases of Moseley v. Moon, 201 Ark. 164, 144 S.W.2d 1089, and Redfern v....