Gaither v. Gage

• Decision Date: 25 February 1907
• Parties: GAITHER v. GAGE
• Court: Arkansas Supreme Court

100 S.W. 80

82 Ark. 51

GAITHER v. GAGE

Supreme Court of Arkansas

February 25, 1907

Appeal from Mississippi Chancery Court; E. D. Robertson, Chancellor reversed.

Decree reversed and cause remanded.

J. T Coston, for appellants.

1. As to the Gage tract: The tax sale was void, the levy for 1875 being three mills, and for 1876 one mill, in excess of the constitutional limit. Art. 8, § 9, Const. Void also because the sale was made on June 11, 1877, a day not provided by law for tax sales at that time. 33 Ark. 749; Gantt's Dig. § 5188. The land sold for penalty and cost alone, contrary to the provisions of the law. 56 Ark 96.

2. The application of the act of March 18, 1899, which this court construed in 74 Ark. 302, is in express terms limited to unimproved and uninclosed land. 97 S.W. 448; 81 Ark. 258. Where one seeks to establish title under the statute of limitations, if he relies on actual possession, he must plead and prove it; if he relies on the statutory possession created by payment of taxes, the burden is on him to prove both the payment of taxes and that the land is unimproved and uninclosed. 94 S.W. 931.

3. As to the Campbell tract: The five-year statute of limitations applies only to parties whose rights were heard and adjudicated, and plaintiffs were not parties to the foreclosure suit against Lanier. Confirmation cures irregularities in the sale or the order therefor, but not jurisdictional defects. 84 S.W. 1046. While the lapse of five years cures irregularities between parties whose rights were adjudicated (54 Ark. 627), its application stops at parties and privies. Strangers to the proceedings are not affected by it. 101 F. 98. Actual possession adds nothing to the strength of defendant's title under the five-year statute, for it runs regardless of possession from the time of sale. Ib. 99; 22 Ark. 181.

4. If it be conceded that the land was unimproved and uninclosed at the time Campbell took possession, he nevertheless can not work out a title under both the five-year statute and the seven-year statute of tax payments. He must rely on one or the other, not on both. 58 Ill. 57; 96 Ill. 417; 46 Ill. 522.

S. S Semmes and G. W. Thomason, for appellees.

1. As to the Gage tract: If the tax levies were excessive, this would not vitiate the tax sale unless it is shown that an excessive tax was actually assessed against the land, and the land sold for such excessive tax, and this is not proved. But neither the levy of 1874 nor of 1876 was excessive. At the time the levy was made in 1874, a total of twelve and one-half mills could lawfully be levied. Acts 1873, p. 367. The actual levy was ten and one-half mills.

In 1876 an aggregate of ten mills was levied, and this was permitted where a county indebtedness existed. Const. 1874. The date of sale, June 11, 1877, was the time provided by the law then in force, i. e., the second Monday in June. Act March 9, 1877, § 2. There is no foundation for the contention that the sale was made for penalty and costs only.

2. It is sufficiently shown, as appears by the record, that the land was wild and uninclosed. But, independently of this, the petition was rightfully dismissed. In order to confer jurisdiction upon the court in confirmation of titles under the act of 1899, it is imperative that the petition should allege that there is no adverse occupant of the land to which title is sought to be confirmed. If it be made to appear that the land is in adverse possession of some other person than petitioner, the petition should be dismissed.

3. As to the Campbell tract: The principle that parties only are bound by judicial proceedings is conceded, but the legislative power to enact statutes of limitation barring all the world must also be conceded. 16 Ark. 628; 19 Am. & Eng. Enc. of Law, 167.

Where the Legislature makes no exceptions in a statute of limitations, the courts can make none. 6 Ark. 14; 13 Ark. 291; 24 Ark. 487. See, also, 53 Ark. 400.

4. As to appellee's claim of seven years payment of taxes, if the land was unimproved and uninclosed when he commenced paying the taxes on it, why should he not be permitted to go upon the land, take actual possession, and tack the time of actual possession coupled with continuing tax payments to the time of previous payment of taxes so as to make out his seven years payments under the statute? Common sense as well as justice would seem to justify the conclusion that the two could be tacked together.

J. T. Coston, for appellant in reply.

In the tax levy for 1876, the levy of four mills for county indebtedness was valid, but the levy of six mills for other purposes exceeded the constitutional limit by one mill, and rendered the levy invalid. Const., art. 16, § 9.

OPINION

MCCULLOCH, J.

Appellants, Gaither and others, instituted proceedings ex parte in chancery to confirm title to various tracts of land described in their petition, setting forth their title thereto and alleging that the lands were wild and unimproved. Various parties appeared in the proceedings to resist the confirmation, claiming title to the several tracts, among them being appellees, W. A. Gage & Company, who claimed title to a tract containing 80 acres, and Robert Campbell, who claimed title to a tract containing 40 acres. Each of these parties filed answers and cross-complaints, denying that the petitioners had title to the lands described, setting forth their respective claims of title, and asking that their titles be quieted.

Gage & Company claimed title under a sale by the collector on June 11, 1877, for taxes for the years 1873, 1874, 1875 and 1876; they also alleged that they had paid the taxes on said land under color of title for more than seven years, three payments being after March 18, 1899, and pleaded the seven-year statute of limitations. They did not, however, allege that the lands were unimproved and uninclosed. Appellants answered the cross-complaint, attacking the validity of the tax sale, but admitting that Gage & Company had paid taxes on the land for more than seven years and that three of such payments had been made since March 18, 1899.

Appellee Campbell asserted title to the tract claimed by him under a sale by commissioner of the chancery court under decree of said court, and he alleged that he and those under whom he claimed title had been in actual, adverse and notorious possession of said land continuously for more than seven years next before the filing of appellant's petition for confirmation. He also alleged that they had paid taxes for more than seven years, three payments having been made since March 18, 1899, and pleaded the five-year statute of limitations under the judicial sale and also the seven-year statute. Appellants answered this cross-complaint, and admitted that Campbell and those under whom he claimed title had paid taxes on said land for seven years, and had been in actual possession for five years, but denied that such actual possession had continued for seven years.

Before the final hearing of the cause appellants amended their original petition, having obtained leave of the court to do so, by striking out the allegation to the effect that the lands were unoccupied and inserting in lieu thereof an allegation that the lands were in the possession of the cross-complainants.

The court rendered a final decree dismissing the complaint for want of equity, and the petitioners appealed.

Appellants hold the original title to both the tracts of land in controversy. They attack the validity of the tax sale of the Gage tract on the ground that the levy of taxes for the year 1876 exceeded in amount the constitutional rate and was therefore void. To sustain the attack they show by proper evidence that for the year 1876 the levying court of Mississippi County levied six mills on the dollar for county purposes and four mills to pay all indebtedness. This exceeded the limit prescribed by the Constitution, and rendered the tax levy and all subsequent proceedings thereunder void. The Constitution provides that "no county shall levy a tax to exceed one-half of one per cent. for all purposes, but may levy an additional one-half of one per cent. to pay indebtedness existing at the time of the ratification of the Constitution." Const., art. 16, § 9. The fact that the whole levy for all county purposes was not in excess of one per cent. did not render it valid.

It is admitted in the...