Heinen v. Dixon, 5-2894

• Decision Date: 28 January 1963
• Docket Number: No. 5-2894,5-2894
• Citation: Heinen v. Dixon, 364 S.W.2d 153, 236 Ark. 1 (Ark. 1963)
• Parties: Lester A. HEINEN, Appellant, v. Kenneth DIXON, Appellee.
• Court: Arkansas Supreme Court

Page 153

364 S.W.2d 153

236 Ark. 1

Lester A. HEINEN, Appellant, v.Kenneth DIXON, Appellee.

No. 5-2894.

Supreme Court of Arkansas.

Jan. 28, 1963.

John B. Driver, Marshall, for appellant.

Opie Rogers, Clinton, for appellee.

HARRIS, Chief Justice.

Kenneth Dixon, appellee herein, instituted suit in the Chancery Court of Searcy County against appellant, Lester A. Heinen, seeking to cancel and set aside a clerk's tax deed issued to appellant on February 23, 1961.The lands had been sold on November 10, 1958, because of non-payment of taxes allegedly due for the year, 1957.At the time of the tax sale, the lands in question were listed in the name of E. R. Martin.Thereafter, appellant instituted suit in the Chancery Court seeking to quiet and confirm the title to said lands in him.¹Notice was published for four weeks during the month of March, 1961.The complaint was supported by the affidavits of two persons (Annis M. Walsh and Gibson L. Walsh), who stated that they were residents of Searcy County, familiar with the property, and that they knew Lester A. Heinen was the owner of the lands, had been in possession for more than the last past three years, and there were no adverse occupants or claimants.No personal service was obtained upon any person, the county clerk certifying that E. R. Martin's whereabouts were unknown, and that she had been unable to apprise Martin of the pendency of the action.On May 4, 1961, the Chancery Court entered its decree quieting and confirming title to the lands in question in appellant.In October of the same year, appellee instituted the present suit, alleging that he was the owner of said lands in fee simple; that Heinen had obtained a tax deed to the lands, purporting to convey same to appellant, but that the tax deed was of no effect because the sale was void.Appellee then alleged twenty-two grounds for voiding the sale, and, in addition, asserted, 'The plaintiff delivered his list of lands on which he desired to pay tax to the collector, including the lands herein, and by oversight the collector failed to include the lands herein involved in the list and this renders the sale void.'The prayer of the complaint was that the tax deed be cancelled and held for naught, and that appellee be permitted to redeem the property.After the filing of various pleadings and Requests for Admissions, the cause proceeded to trial, and on March 27, 1962, the court entered its decree, finding,

'The records of the Quorum Court fails to disclose that proper levy of taxes for the year 1957 were made in Searcy County; the purported sale of lands were made for amounts that involved overcharges, even if the levy of taxes had been properly made and the tax sale was not advertised as required by law.'

The court held the tax sale, and deeds executed thereunder, void, and vacated the decree of confirmation which had been entered in May.Title to the lands was quieted and confirmed in Dixon as against appellant.Appellee tendered a sufficient amount to cover taxes and penalty, together with interest.From the decree entered, Heinen brings this appeal.For reversal, appellant asserts that the Chancellor erred in permitting evidence to be introduced as to facts and circumstances existing prior to the confirmation decree, and further, that appellee's suit was a collateral attack upon the confirmation decree, and not permissible.It is also asserted that the decree was res judicata.

The facts show that Martin was the owner of the land in 1957, and during said year sold the lands to W. E. DeRamus.On October 10, 1960, DeRamus and wife entered into a contract to sell the lands to Dixon for $10,500.The contract provided for a cash payment of $1,500.00, the balance to be paid at the rate of $50.00 per month, except that commencing in April, 1967, an additional sum of $160.00 would be paid every six months.An executed deed was turned over to Ray Wheeler, agent in escrow, to be delivered to Dixon when the contract had been paid out.It...