Hewett v. Ozark White Lime Co.

• Decision Date: 08 November 1915
• Docket Number: 211
• Citation: 180 S.W. 199,120 Ark. 528
• Parties: HEWETT v. OZARK WHITE LIME COMPANY
• Court: Arkansas Supreme Court

180 S.W. 199

120 Ark. 528

HEWETT v. OZARK WHITE LIME COMPANY

No. 211

Supreme Court of Arkansas

November 8, 1915

Appeal from Benton Chancery Court; T. H. Humphreys, Chancellor affirmed.

Decree affirmed.

Walter Mathews, for appellant.

1. The notice of the sale of the land was actually published, but the certificate of the clerk at the end or foot of the delinquent list does not show that fact. The failure of the clerk was a mere irregularity or omission of duty, from taking advantage of which appellee is barred by the two years' statute of limitation. Kirby's Dig., § 7114; 46 Ark. 96.

2. The description of the land is sufficiently definite for a surveyor to take the deed and locate and identify it by reference to the description in the deed, and is sufficient. 2 Tiffany, Modern Law of Real Property, 881.

McGill & Lindsey, for appellee.

1. The tax deed is void for want of a proper description. 50 Ark 484; 62 Ark. 188; 77 Ark. 570; 83 Ark. 334; 56 Ark. 172; 69 Ark. 357; 64 Ark. 432; 99 Ark. 154.

2. The tax sale was void for want of the clerk's certificate of publication. 55 Ark. 218; 65 Ark. 395; 68 Ark. 248; 74 Ark 583; 80 Ark. 31; 81 Ark. 296; 84 Ark. 1. The two years statute of limitation relied on by appellant has no application where the tax deed is void for want of a proper description. 77 Ark. 570; 93 Ark. 176.

OPINION

MCCULLOCH, C. J.

This is an action in the chancery court to cancel a tax deed under which appellant claims title to the land in controversy which is described in the tax proceedings and in appellant's deed as "W. pt. S. E. S. E. 20-20-33, 7-60 acres." The assessment was in the name of "unknown" owner. Appellee was the owner of the land, and the only question involved is as to the validity of the tax sale, which is attacked on the ground that the description is insufficient, and also because the clerk of the county court failed to make a certificate on the record of the delinquent list, as required by the provisions of section 7086 of Kirby's Digest, "stating in what newspaper said list was published, and the date of publication, and for what length of time the same was published before the second Monday in June then next ensuing."

The tax sale was void upon both of the grounds of attack, and the chancery court was correct in cancelling it. The description of the land is identical with the description in Schattler v. Cassinelli, 56 Ark. 172, 19 S.W. 746, where this court held that the defective description invalidated the sale. This court has repeatedly held that the failure of the clerk to make the certificate provided for in section 7086 of Kirby's Digest is fatal to the validity of the tax sale. Martin v. Allard, 55 Ark. 218, 17 S.W. 878; Hunt v. Gardner, 74 Ark. 583, 86 S.W. 426.

Appellant relies upon section 7114 of Kirby's Digest, which provides that "actions to test the validity of any proceeding in the appraisement, assessment or levying of taxes upon any land or lot, or part thereof, and all proceedings whereby is sought to be shown any irregularity of any officer, or defect or neglect thereof, having any duty to perform, * * * in the assessment, appraisement, levying of taxes or in the sale of lands or lots delinquent for taxes, * * * shall be commenced within two years from the date of sale, and not afterwards."

"It has been held that that section does not apply to jurisdictional matters or vital defects in the proceedings relating to a tax sale, but...