Hershy v. Thompson

• Decision Date: 02 June 1888
• Citation: 8 S.W. 689
• Parties: HERSHY <I>v.</I> THOMPSON.
• Court: Arkansas Supreme Court

Page 689

8 S.W. 689

HERSHY

v. THOMPSON.

Supreme Court of Arkansas.

June 2, 1888.

Appeal from circuit court, Sebastian county; R. B. RUTHERFORD, Judge.

U. M. & G. B. Rose, for appellant. Sam. W. Williams, for appellee.

BATTLE, J.

This was an action of ejectment commenced by Thompson against Hershy in the circuit court of Sebastian county, to recover a certain tract of land in that county, containing five acres. Plaintiff recovered judgment for the land, and the defendant appealed.

Appellee alleges he is the owner and entitled to the possession of the land in controversy, and that appellant is wrongfully in possession. This is denied by appellant. To sustain his claim appellee traces his title back, through Newman Erb, to G. W. Estes, but does not undertake to show that Estes had any title. He alleges, and appellant does not deny, that Erb took actual possession when he purchased. It appears that a tract of land was listed and assessed for taxation for the year 1878 as "part of the south-east quarter of the north-east quarter of section fifteen, in township eight North, and in range thirty-two West," in the name of Erb. No other description of the land was given in the assessment. Appellant alleges, in his answer, that the land so assessed was returned delinquent on account of the non-payment of the taxes for the year 1878, and that he redeemed and purchased it from the county clerk of Sebastian county; and, to identify it as the land in controversy, alleges that it was assessed in the name of Newman Erb, and that the land in controversy was all the land owned or claimed by Erb in the S. E. ¼ of the N. E. ¼ of said section 15; and averred that he notified Erb that he had purchased. Erb testified that he purchased the land sued for of E. M. Estes on the 8th of November, 1872, and that Estes delivered him the deed under which he (Estes) held and claimed possession; and that when he (Erb) purchased, he went into immediate actual possession of the land, and had it properly inclosed, by having the fence around it repaired, and remained in possession until he sold; and that he paid the taxes on it regularly, except for one year. These allegations of appellant, and the testimony of Erb, are sufficient to sustain the verdict of the jury as to the right to the land, in this court.

But appellant insists he was entitled to judgment for taxes paid, and for improvements made by him on the land. It is true, a part of the S. E. ¼ of the N. E. ¼ of section 15, in township 8 N., and in range 32 W., containing five acres, was assessed for taxation for 1878, but no other description was given of it in the assessment. It was returned delinquent for the taxes of that year, and, not having been redeemed by the owner within the first year after it was returned delinquent, appellant redeemed it within the second year, under an act entitled "An act to provide for the redemption of delinquent lands, and to repeal sections 5185 and 5186 of Gantt's Digest," approved March 14, 1879; and the county clerk of Sebastian county executed and delivered to him a deed therefor, describing it as described in the assessment. It is obvious that he took nothing by his redemption, because the assessment and deed under which he claims are void. But the question recurs, is appellant entitled to anything for taxes paid? In the assessment of lands for taxation the statutes of this state provide that the description of each tract or lot of real property shall be such as to identify it and distinguish it from any other tracts or lots. The object of such description is to inform the owner and all other persons of the tracts and lots assessed, and the amount of taxes levied thereon. From the description given of the tract purchased by appellant for the taxes of 1878 it cannot be ascertained what part of the S. E. ¼ of the N. E. ¼ of said section 15, containing five acres, was assessed. In fact there was no description, and the assessment of this indefinite and unknown part was void. Gantts' Dig. § 5117; Mansf. Dig. § 5677; Cogburn v. Hunt, 54 Miss. 675; Society v. Mayor, etc., 3 Mich. 184; Greene v. Lunt, 58 Me. 518; Lessee of Massie's Heirs v. Long, 2 Ohio, 293; State v. Elizabeth, 39 N. J. Law, 689; Yandell v. Pugh, 53 Miss. 303. There being no legal assessment of the five acres, there could be no valid sale thereof. But the statutes of this state provide, that upon the sale of any land for taxes, if such sale should prove invalid on account of any informality in the proceedings of any officer having any duty to perform in relation thereto, the purchaser at such sale shall be entitled to receive from the proprietor of such land or lot the amount of taxes for which such land was sold, and the amount of taxes paid thereon by the purchaser subsequent to such sale, and such land shall be bound for the payment thereof. Mansf. Dig. § 5789. One of the requirements necessary to the validity of the sale being a description of the land in the assessment, which of itself shall identify, it follows that the purchaser at a sale void...