Helena v. Hornor
| Citation | 23 S.W. 966,58 Ark. 151 |
| Parties | HELENA v. HORNOR |
| Decision Date | 04 November 1893 |
| Court | Supreme Court of Arkansas |
Appeal from Phillips Circuit Court, GRANT GREEN, JR., Judge.
Affirmed.
James P. Clarke for appellant.
1. The lots belonged to a municipal corporation, and were not subject to taxation. They were "public property," and whoever insists upon a forfeiture of such property must show by proper averment that it is of such a character as to subject it to taxation. Cooley, Taxation, 172, 173.
2. What is supposed to be section i of the act of January 10, 1857 is found in Gantt's Digest as section 4117, and the only liberty taken by the digester, was to add the word "any" before the word "act" where the latter first occurs. But the digester, in carrying the section into Mansfield's Digest, as section 4475, makes material and unwarranted changes in its wording. This he had no power or authority to do. The legislature makes the law not the digester.
3. This statute, which was construed in 53 Ark. 422, does not apply to this case, because (1) appellee does not hold under a purchase made at a sale by a sheriff or auditor (55 Ark 192); (2) appellee did not acquire his title under the act of 1857, providing for a redemption of lands. "Lands" do not include "town-lots," within the meaning of our revenue laws. Gould's Dig. p. 955; Gantt's Dig. sec. 5188; Mansf. Dig. sec. 5760.
J. J. & E. C. Hornor for appellee.
1. Only "public property, used exclusively for public purposes," is exempt. Const. art. 17, sec. 5; Mansf. Dig. secs. 5586, 5597. It must be shown that the claim falls within the exemption, and it was not alleged nor proven. 32 Ark. 135; 25 id. 293; 18 A. & E. Corp. Cas. 28; 1 Duval, 295.
2. Appellant is barred by section 4475, Mansfield's Digest. The duties of the auditor have been by law put upon the commissioner of State lands, and the change of verbiage was warranted by law. 43 Ark. 398; 51 id. 397; 53 id. 423; Ib. 418.
3. "Land" embraces town-lots. 2 Blackst. Com. p. 16; Mansf. Dig. sec. 5585--6.
This is an action of ejectment brought by the city of Helena for certain lots deeded to the city by Edward Fitzgerald in 1873. The answer pleads two years adverse possession under a tax deed executed by the commissioner of State lands in 1888, conveying the lots in controversy, which lots the State had acquired by a forfeiture and sale for the non-payment of the taxes of 1885. The deed was in regular form, and made an exhibit to the answer. Demurrer to the answer overruled, appellant resting, judgment was rendered for appellee, from which an appeal was duly prosecuted.
Appellant's counsel presents three questions for our consideration, which we will state in the order disposed of. (1.) Does section one of "An act entitled an act to quiet land titles in this State" approved January 10, 1857, apply to deeds of the commissioner of State lands? (2.) Can the appellee plead this bar against a municipal corporation? (3.) Are "town-lots" included in the word "lands" used in the act?
1. Section one of the act of 1857 is as follows: "That no action for the recovery of any lands, or for the possession thereof against any person or persons, their heirs or assigns, who may hold such lands by virtue of a purchase thereof, at sheriff's or auditor's sale, for the non-payment of taxes, or who may have redeemed the same from the auditor of this State, by virtue of act providing for the redemption of lands forfeited to this State for the non-payment of taxes, or who may hold such land under an auditor's deed, commonly known as a donation deed, shall be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor was seized or possessed of the lands in question within two years next before the commencement of such suit or action." What purports to be the above section appears in Mansfield's Digest, as sec. 4475, and is as follows: "No action for the recovery of any lands, or for the possession thereof, against any person or persons, their heirs or 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 non-payment 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 non-payment of taxes, or who may hold such lands under a donation deed from the State, shall be maintained, unless it appear that the plaintiff, his ancestor, predecessor or grantor was seized or possessed of the lands in question within two years next before the commencement of such suit or action." It will be observed that the digester substituted for the words "sheriff's or auditor's," appearing in the first section above copied, the words "collector or commissioner of State lands," and for the words "redeemed the same from the auditor of this State," the words "purchased the same from the State," and inserted the word "any" before the word "act," and substituted the word "sale" for the word "redemption" and for the words "auditor's deed," the words "donation deed."
It is contended that these were material changes, and wholly unauthorized. We do not so regard them. The office of commissioner of State lands was created July 15, 1868, and the landed interest of the State placed under its control. Mansf. Dig. sec. 4177. note n. and sec. 4183. Sec 9, same act provides: "He shall also have the charge, control and disposition of all lands forfeited, or that may be hereafter forfeited, to or purchased by the State for the non-payment of taxes, and such commissioner shall dispose of such lands as is or may be provided by law." Mansf. Dig. sec. 4185. Before that time these functions were performed by the auditor. Secs. 151, 155, 159, ch. 148, Gould's Dig. The deed of the auditor and of the commissioner of State lands, conveyed the same thing--i. e. "all the right, title, interest and claim" of the State to forfeited lands. Secs. 163, 164, ch. 148, Gould's Dig.; sec. 667, Mansf. Dig. When the digester in 1884 came to collate and compare the laws concerning lands forfeited to the State for the non-payment of taxes, he found that the name of the officer having charge of the land department had been changed, but that the office and its functions remained the same, so that in substituting the words "commissioner of State lands" for "auditor" where it appears in sec. 1 of the act of January 10, 1857, he was only doing what the legislature had...
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