Hirsch v. Dabbs

• Decision Date: 06 March 1939
• Docket Number: 4-5373 and 5-5401
• Citation: 126 S.W.2d 116,197 Ark. 756
• Parties: HIRSCH AND SCHUMAN v. DABBS AND MIVELAZ
• Court: Arkansas Supreme Court

126 S.W.2d 116

197 Ark. 756

HIRSCH AND SCHUMAN v. DABBS AND MIVELAZ

4-5373 and 5-5401

Supreme Court of Arkansas

March 6, 1939

Appeal from Sebastian Chancery Court, Ft. Smith District; C. M Wofford, Chancellor; affirmed.

Decrees affirmed.

George W. Dodd, for appellants.

Geo F. Youmans and Roy Gean, for appellees.

SMITH J. HOLT, J., disqualified and not participating.

OPINION

SMITH, J.

The state of Arkansas brought suit in the Sebastian chancery court, Fort Smith District, for the confirmation of title to numerous town lots and tracts of land which had been forfeited and certified to the state for the nonpayment of taxes. The suit was begun under authority conferred by act 119 of the Acts of 1935, p. 318. Section 6 of this act reads as follows:

"Section 6. Any person, firm, corporation, or improvement district claiming any interest in any tract or parcel of land adverse to the state shall have the right to be made a party to the suit, and, if made a party, the claims of any such person, firm, corporation, or improvement district shall be adjudicated, If any person, firm, corporation or improvement district sets up the defense that the sale to the state was void for any cause, such person, firm, corporation or improvement district shall tender to the clerk of the court the amount of taxes, penalty and costs for which the land was forfeited to the state, plus the amount which would have accrued as taxes thereon had the land remained on the tax books at the valuation at which it was assessed immediately prior to the forfeiture, provided, that there shall be credited on the amount due, any taxes that may have been paid on the land after it was forfeited to the state.

"In case any person, firm, corporation or improvement district so made a party defendant to the proceeding as hereinabove provided, shall establish a valid defense, a decree of the court shall be rendered in favor of such defendant, with respect to the tract so affected and shall quiet the title thereto in such defendant, free from any claim of the state therein, upon payment by said defendant of the total amount of taxes, penalty and costs as hereinabove mentioned."

Two lots in the city of Fort Smith, which are the subject-matter of this litigation, were involved in this confirmation suit, it being alleged that said lots had been sold to the state in 1934 for the non- payment of the taxes due thereon for the year 1933. Appellees, respective owners of the two lots here in question, filed an intervention, pursuant to the authority of § 6 of this act 119, above copied, and alleged that the sale of their lots was void for numerous reasons. They made the tender required by § 6, and the sum tendered was deposited with the clerk of the court, subject to the order of the court, and they prayed that their title be quieted.

Appellant J. B. Hirsch had purchased both lots from the state, and received a separate deed for each lot, and it was prayed that Hirsch be made a party defendant. This was done, and Hirsch filed an answer to each intervention, denying the invalidity of the forfeiture and sale to the state. The same issues are involved, and arise out of facts identical in each intervention, and we will discuss the cases as if there were only one case.

The court held the sale of the lots void for various reasons and granted the interveners the relief prayed, and from that decree is this appeal.

The court made numerous findings of fact, in each of which it was declared that the sale was void for the reasons there stated.

One of the findings was that the sale was void for the reason that the county clerk had not posted up in or about his office the delinquent list of lands for one year. This requirement appears in § 10084, Crawford & Moses' Digest, and it had been held that failure to comply with it invalidated the tax sale. Tedford v. Emison, 182 Ark. 1054, 34 S.W.2d 214.

But when the sale here in question was made, this requirement was not in effect. Section 10084, Crawford & Moses' Digest, was amended by act 250 of the acts of 1933. This amendatory act re-enacted § 10084, Crawford & Moses' Digest, by omitting the last sentence thereof, which reads as follows: "He (the county clerk) shall also keep posted up in or about his office such delinquent list for one year." The effect of this amendment of § 10084, Crawford & Moses' Digest, by § 5 of act 250 was to dispense with this requirement, and as that duty is not now imposed and was not required when the tax sale was had, non- compliance therewith does not now operate, and has not, since the passage of act 250, operated to invalidate tax sales on that account.

Act 250 of the acts of 1933 was not published in the printed acts of 1933. Under that number appears the notation: "Held unconstitutional by the Supreme Court." This was an error on the part of the secretary of state in omitting to include act 250 in the acts of 1933 as published.

This act 250 contains provisions fixing the fees of various county officers, and that portion of the act was held unconstitutional in the case of Smith v. Cole, and Brown v. Pennix, 187 Ark. 471, 61 S.W.2d 55, for the reason that it violated the inhibition of amendment No. 14 to the constitution against passing local laws, but it was said in that case that "the fact that §§ 5 and 6 of act 250 of 1933 are general in their nature and valid will not validate local and special provisions in § 2 of the same act." See, also, Tindall v. Searan, 192 Ark. 173, 90 S.W.2d 476.

Sections 5 and 6 of this act 250 amended §§ 10084 and 10085, Crawford & Moses' Digest, respectively, and that portion of the act was upheld in the case of Matthews v. Byrd, 187 Ark. 458, 60 S.W.2d 909, it being the opinion of the court that these §§ 5 and 6 were separable from the remainder of the act, which fixed fees and salaries. Section 5 of act 250 was, therefore, valid legislation, as was also § 6, and, as we have stated, the effect of § 5 was to eliminate the requirement contained in § 10084, Crawford & Moses' Digest that the county clerk post and keep posted up in and about his office such delinquent list for one year.

Other findings of the court holding that the tax sale was invalid are to the following effect: No proper certificate of delinquency was filed by the collector with the county clerk; nor was the certificate which was filed, filed within the time required by law; nor was the list of delinquent lands entered upon the record within the time and manner required by law. The court further found that the clerk had failed to attach to the tax books the warrant required by law authorizing and directing the collector to make collection of the taxes entered upon the tax books.

There was read into the record a certificate as follows:

"State of Arkansas, County of Sebastian. I, Earl Dawson, county clerk within and for the county and state aforesaid, do hereby certify that a notice of the filing of the foregoing list of real estate returned delinquent for the year 1933 was published in the Southwest-Times Record Company, a newspaper of said county and district. The first notice of the delinquent land sale was published on 9th day of November, 1934, and the second notice on the 16th day of November, 1934, as the law requires.

"In testimony whereof, I have hereunto set my hand and affixed the seal of said office this 22nd day of November, 1934."

Following this reading the clerk was asked: "Q. Is the notice actually set out in that record" and he answered: "A. No, sir."

It is uncertain to what document or record this question and answer related. There does not appear to have been any other record of the "List of Real Estate Returned Delinquent for the Year 1933." If this delinquent list had not been entered upon a permanent record, usually referred to as the record of lands returned delinquent, the sale was void for that reason. If this was the record, and not merely the delinquent list filed by the collector with the county clerk, the entry therein was not sufficient, for the reason that the record was not made until November 22, 1934, which was subsequent to the date of sale, the sale having been made November 19, 1934.

Section 10082, Crawford & Moses' Digest, required the collector to file the list of delinquent lands, duly verified, with the county clerk by the second Monday in May, and it was held essential to the validity of the sale of these lands that the list be filed on or before that date. Boyd v. Gardner, 84 Ark. 567, 106 S.W. 942; Ramsey v. Long Bell Lumber Co., 195 Ark. 528, 112 S.W.2d 951. The county clerk was required to compare this delinquent list with the tax book and the record of tax receipts. Section 10084 required the county clerk to publish the list of delinquent lands as corrected, and by § 10085 it was required that "The clerk of the county court shall record said list and notice in a book to be kept by him for the purpose," and shall certify at the foot of the record the newspaper in which the list was published, and the date of publication, and for what length of time the same was published before the second Monday in June next ensuing. These statutes were construed as requiring that not only should this record be made, but that it must be made before the day of sale, and that if not made, or not made until after the day of sale, the sale was invalidated. Magness v. Harris, 80 Ark. 583, 98 S.W. 362.

The insistence is, not that these requirements were met, but that they have been dispensed with by act 250 of the 1933 regular session of the General Assembly, and by act 16 passed at the special session thereof (Acts Special Session 1933, page 61), and that it is not now required that the clerk shall certify anything more than to state in what...