Hires v. Douglas, 4-5516.

• Decision Date: 12 June 1939
• Docket Number: No. 4-5516.,4-5516.
• Citation: 129 S.W.2d 959
• Parties: HIRES et al. v. DOUGLAS.
• Court: Arkansas Supreme Court

129 S.W.2d 959

HIRES et al. v. DOUGLAS.

No. 4-5516.

Supreme Court of Arkansas.

June 12, 1939.

Rehearing Denied July 10, 1939.

Appeal from Mississippi Chancery Court, Chickasawba District; J. F. Gautney, Chancellor.

Proceedings by Orlena Hale Hires and another against F. C. Douglas to set aside foreclosure sales and confirmation orders affecting plaintiffs' lands located in certain road improvement and maintenance districts. From unsatisfactory decrees, plaintiffs appeal.

Decrees reversed, with directions to avoid defendant's deeds to the lands in question.

Horace Sloan, of Jonesboro, and James G. Coston and Joseph T. Coston, both of Osceola, for appellants.

Frank C. Douglas, of Blytheville, for appellee.

GRIFFIN SMITH, Chief Justice.

The question for determination is whether the chancellor erred in refusing appellants' pleas to set aside foreclosure sales and confirmation orders affecting their lands in Blytheville Road Improvement District No. 5, and in Blytheville Road Maintenance District No. 5.

Suits were filed October 26, 1934, with decrees November 28 of the same year. It was alleged that taxes for 1932 had not been paid. Of the lands involved, 230 acres were owned by Edith Hale Howton, and 240 acres were owned by Orlena Hires. There was testimony that the Hires property was worth $25,000, and that the Howton holdings, if the lands had been cleared, would have been worth $75 an acre.

As to lands in the road improvement district, total taxes were $40.58. The decree recited that the sale be had for the taxes, statutory penalty of 25%, and cost, and that if such sums be not paid on or before September 1, 1935, such sale be consummated. The commissioner (January 21, 1936) gave notices of sales, showing the delinquent taxes charged against each tract. The notices contained this statement: "In addition to the amount of tax or installment of benefits charged on the respective tracts, there was also adjudged against the several tracts a penalty of 25%, attorney's fee of 10%, and all costs."

The commissioner's reports show sales to Frank C. Douglas, February 17, 1936. The first four tracts aggregating 155 acres under four descriptions were (according to the commissioner's report) sold for $16.05. The next two tracts, embracing 80 acres under two separate descriptions, were sold for $11.52, as were two other tracts of forty acres each, and 200 acres assessed as five separate forties were sold for $31.73, or a total of $70.80 for the twelve tracts.

Foreclosure suits in the road maintenance district show that notice of sale was identical with that of the road improvement district except as to the amount of taxes ($118.79), etc. The first four tracts were sold for $37.79, the next two for $27.82, two others for $27.82, and the next four for $82.95, a total of $176.38. The report was approved by the court February 24, 1936.

Numberous grounds of avoidance of the consequences of sale and confirmation are urged, only two of which will be discussed in this opinion. Either, we think, was sufficient to avoid the sales.

First. Although the several tracts were ordered sold separately for the taxes, penalty, and cost assessed and decreed against them, the commissioner's report shows sale in solido, and this the law does not permit.

Act 338, page 1400, of 1915 authorizes assessments against "particular tracts of land, showing benefits per acre or assessed benefits per tract."

In Montgomery et al. v. Birge, 31 Ark. 491, Chief Justice English, speaking for the court, said: "It is sufficient to say of the tax deed relied on by appellants, that it is void on its face. It recites the sale of all the lands, a number of tracts in different sections, amounting to 960 acres, en masse, for the sum of $56.06, the gross amount of taxes, penalties, and costs charged upon the whole of them."

It was said in Cocks v. Simmons, 55 Ark. 104, 17 S.W. 594, 29 Am.St.Rep. 28, as shown by the state report headnote, that "A tax deed which recites the sale, in a body and for a gross sum, of several sections of land severally assessed is void."

A headnote in Salinger v. Gunn, 61 Ark. 414, 33 S.W. 959, is: "A [tax] sale in a body, and for a gross sum, of several lots of land separately assessed, is void."

Chief Justice Hill, in La Cotts v. Quertermous, 83 Ark. 174, 103 S.W. 182, said: "Appellees also insist that their tax title is good; but it is void on its face. It shows that lots 1 and 2, block 21, in the town of Goldman, were sold as one tract for the sum of $8.92½. Such tax sales are void."

In Lawrence v. Zimpleman, 37 Ark. 643, at page 646, it was said: "Moreover, it appears from the recitals of the tax-deed that two tracts of land were sold together, for the taxes due on the whole. Such a deed casts no cloud upon the owner's title."

Referring to some of the older cases which held a tax deed...