Fuller v. Wilkinson

Decision Date17 April 1939
Docket NumberNo. 4-5428.,4-5428.
Citation128 S.W.2d 251
PartiesFULLER v. WILKINSON et al.
CourtArkansas Supreme Court

Appeal from Chicot Chancery Court; E. G. Hammock, Chancellor.

Proceeding by Estes Wilkinson and another against Tom Fuller. From an adverse decree, defendant appeals.

Reversed and remanded with directions.

J. T. Cheairs, of Lake Village, for appellant.

Carneal Warfield, of Eudora, for appellees.

FRANK G. SMITH, Justice.

The tract of land here in controversy was sold to the state in 1931 for the nonpayment of the 1930 taxes due thereon. Included in the taxes for the nonpayment of which the land was sold was the county road tax of 3 mills. This road tax had not been voted by the electors at the preceding general election, and there was, therefore, no authority for the extension of this tax against the land.

Under the authority of act 119 of the acts of 1935, page 318, this tax sale to the state was confirmed in a decree rendered April 6, 1936, and more than one year thereafter this suit in ejectment was brought by the purchaser of the state's title. Appellant, the owner of the land at the time of the tax sale, answered that the confirmation decree was void, and the cause was transferred to equity. The chancery court upheld the confirmation decree, for the reason that it had not been attacked within one year after the date of its rendition, and this appeal is from that decree.

For the reversal of this decree it is insisted that the confirmation decree was ineffective to cure the defect in the tax sale, the defect being jurisdictional, inasmuch as there was no authority in law for the extension of the road tax.

This act 119 of the acts of 1935 is similar to and in some of its recitals is identical with act 296 of the acts of 1929, page 1235, indicating that the act 296 served as a model in drafting act 119. The chief difference between the acts appears in section 9 of each of the acts. Section 9 of act 296, page 1239, provides that "The decree of the court confirming the sale to the State shall operate as a complete bar against any and all persons who may thereafter claim said land in consequence of any informality or illegality in the proceedings" (leading up to and incident to the tax sale). The same numbered section appearing in act 119, p. 323, omits the words "any informality or illegality" appearing in the first act, and provides that "The decree of the Chancery Court confirming the sale to the State of such real property, as aforesaid, shall operate as a complete bar against any and all persons, firms, corporations, quasi-corporations, associations, and trustees who may thereafter claim said property [sold for taxes] except as hereinafter provided; and the title to said property shall be considered as confirmed and complete in the State forever," with a saving clause in favor of infants and certain persons under other disabilities during the continuance of the disability and until one year after its removal.

It is obvious that something was intended by act 119 which act 296 did not accomplish, otherwise there was no point in passing the later act, and that this something was to make the confirmation decrees rendered pursuant to act 119 impervious to attack upon any ground, which a decree of confirmation could cure save only by the persons under one of the disabilities there enumerated.

We have had frequent occasion to construe this act 296 and the effect of confirmation decrees rendered pursuant to its provisions. In the first of those cases, that of State v. Delinquent Lands, 182 Ark. 648, 32 S.W.2d 1061, it was held (to quote the headnote in that case) that "Acts 1929, No. 296, providing for confirmation of lands sold to the State, and that the decree of confirmation in favor of the State shall be a bar against any and all persons who may thereafter claim said lands in consequence of `any informality or illegality' in the forfeiture proceeding, does not mean that the confirmation shall be a bar against claimants of land on other grounds." The later cases are also to the effect that confirmation decrees rendered pursuant to the provisions of act 296 cured only informalities and illegalities.

Now, act 119 is not thus restricted, and we think the effect of confirmation decrees rendered pursuant to its provisions is to cure all tax sales where there was not lacking power to sell, that is, all sales for taxes which were due and had not been paid.

It is argued that not even this limitation may be placed upon the effect of decrees confirming tax sales under act 119, which are not attacked within one year after the date of their rendition, for the reason that the act provides that period of time within which the decrees may be attacked, and that after the expiration of this period of limitation the sales may not be attacked upon any ground.

This view would, no doubt, be correct if it be true that act 119 should be construed as enacting a statute of limitation allowing one year within which the confirmation decrees may be attacked, and making them impervious to attack for any reason after that time.

This is the effect of the opinion in the case of Ross v. Royal, 77 Ark. 324, 91 S. W. 178, 179. That opinion points out the distinction between such legislation as section 5061, Kirby's Digest (Sec. 8925 Pope's Digest) and section 7114, Kirby's Digest (Sec. 13883 Pope's Digest).

The last-mentioned section provides that "All actions to test the validity of any proceeding * * * in the sale of lands or lots delinquent for taxes, or proceedings whereby it is sought to avoid any [tax] sale * * *, shall be commenced within two years from the date of sale, and not afterward."

Cases were cited in Ross v. Royal, supra, holding that this statute begins to run from the date of sale, and applies only to mere irregularities in and technical objections to tax sales, and not to jurisdictional or fundamental defects in the sales which render them absolutely void, whereas section 5061, Kirby's Digest, was there upheld as a statute of limitation, which, when it was applicable and had run, concluded any inquiry into the validity of the sale.

This section 5061, Kirby's Digest (Sec. 8925, Pope's Digest), provides that "No action for the recovery of any lands, or for the possession thereof against any person or persons, their heirs and assigns, who may hold such lands by virtue of a purchase thereof at a sale by the collector, or commissioner of State lands, for the nonpayment of taxes, or who may have purchased the same from the State by virtue of any Act providing for the sale of lands forfeited to the State for the nonpayment of taxes, or who may hold such land under a donation deed from the State, or who shall have held two years actual adverse possession under a donation certificate from the State, shall be maintained, unless it appears that the plaintiff, his ancestors, predecessors, or grantors, was seized or possessed of the lands in question within two years next before the commencement of such suit or action."

In the opinion in this case of Ross v. Royal it was said:

"The statute under consideration is plainly a statute of limitation, and begins to run, not from the date of the sale, but from the date actual possession is taken under the deed. Haggart v. Ranney, 73 Ark. 344, 84 S.W. 703; McCann v. Smith, 65 Ark. 305, 45 S.W. 1057. Actual possession of land, taken and held continuously for the statutory period of two years under a clerk's tax deed or donation deed issued by the commissioner of state lands, bars an action for recovery, whether the sale be merely irregular, or void on account of jurisdictional defects.

"In Turner v. New York, supra [168 U.S. 90, 18 S.Ct. 38, 42 L.Ed. 392], the Supreme Court of the United States held that the statute of New York, `providing that deeds from the Comptroller of the State of lands in the forest preserve, sold for nonpayment of taxes, shall, after having been recorded for two years and in any action brought more than six months after the act takes effect, be conclusive evidence that there was no irregularity in the assessment of the taxes, is a statute of limitation, and does not deprive the former owner of such lands of his property without due process of law.' In Saranac Land & Timber Co. v. Comptroller, supra [177 U.S. 318, 20 S.Ct. 642, 44 L.Ed. 786], Mr. Justice McKenna, delivering the opinion of the court, in summing up the effect of the decision in Turner v. New York, supra, says: `The decision establishes the following propositions:

"`(1) That statutes of limitation are within the constitutional power of the Legislature of a state to enact.

"`(2) That the limitation of six months is not unreasonable.'

"The New York Court of Appeals in Meigs v. Roberts, Comptroller, 162 N.Y. 371, 56 N.E. 838, 76 Am.St.Rep. 322, had the same statute under consideration, the question being whether it applied to mere irregularities or jurisdictional defects, and in discussing the difference between the effect of curative statutes and statutes of limitations said: `But there may be, in legal proceedings, defects which are not mere informalities or irregularities, but so vital in their character as to be beyond the help of retrospective legislation. Such defects are called jurisdictional. This principle does not apply to a statute of limitation, for such a statute will bar any right, however high the source from which it may be deduced, provided that a reasonable time...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT