Laflin v. Drake

• Decision Date: 22 January 1951
• Docket Number: No. 4-9299,4-9299
• Citation: 237 S.W.2d 32,218 Ark. 218
• Parties: LAFLIN v. DRAKE et al.
• Court: Arkansas Supreme Court

Page 32

237 S.W.2d 32

218 Ark. 218

LAFLIN v. DRAKE et al.

No. 4-9299.

Supreme Court of Arkansas.

Jan. 22, 1951.

Dissenting Opinion March 26, 1951.

Abe Collins and Charles R. Garner, DeQueen, for appellant.

U. A. Gentry and Moore, Burrow, Chowning & Mitchell, all of Little Rock, for appellee.

GRIFFIN SMITH, Chief Justice.

The appellees are daughters and sole heirs at law of U. L. Thacker. The litigation involves Lot 4 of Block 60, in Mena. Betterments assessed by Paving Improvement District No. 6 were not paid for 1940 and the property was included in a list of lots sold for delinquencies. Tax, interest, and cost, amounted to $14.72. At the foreclosure sale B. B. Laflin, Sr., bid $25 and was declared the purchaser. It is stipulated that for many years prior to 1941 general taxes were assessed in Thacker's name and the tax value for 1941 was $1 250. The lot contained a brick building worth $6,000 when forfeiture occurred, and it is worth that sum now.

In February, 1949, appellees filed a pleading styled 'Intervention by Petition for Bill of Review'. It was given the Chancery Court docket number used in the foreclosure. This suit was the result of an action taken by Laflin in March, 1947, when he intervened in the foreclosure proceedings by alleging that through error the commissioners issued a deed instead of a certificate of purchase. This deed was promptly approved; but, said the intervener, since the time for redemption had expired when the petition was filed in 1947, and the landowner had not offered to pay the adjudicated sum, the transaction should be judicially completed.

The Court directed the Clerk to execute a deed superseding the one prematurely issued. The old order of confirmation is dated January 27, 1942. In asking for a new deed the intervener assured the Court that the foreclosure was regular in all respects and that the attending circumstances were of an approved pattern, therefore the sole matter for consideration was the naked formality of rectifying an obvious mistake made five years earlier. No service was had on the landowner, nor was notice of any kind or information given.

Thacker died in June, 1948--about eight months before the present action was brought. His daughters were non-residents and did not know of the Laflin purchase until an abstracter called their attention to the substituted deed when they undertook to sell the property. The deed in question was recorded April 14, 1947.

The bill of review alleges that the complaint of 1941, publication of notice of the suit, the decree, and the commissioner's notice of sale--all listed the owner as R. E. Johnson. Although Thacker bought the lot in 1919 and did not have his deed recorded, the real owner was generally known and had at all times been in possession through tenants.

Urged as an additional vice was the fact that the foreclosure decree, after fixing the lien, directed that if the item of $14.72 should not be paid and the obligation discharged within twenty days 'from the date of this decree, said lien shall be forever foreclosed and the lands condemned'. The Clerk, as commissioner, was ordered to conduct the sale '* * * after having first advertised * * * weekly for two consecutive weeks'. Without waiting for the 20-day period to expire notice was given December 12, 19, and 26. The decree was dated December 4, so the result was that the publication of December 26th was the only notice given after the time allowed for paying without further cost had terminated.

Because of state aid, benefits were not collected for two years preceding the 1940 delinquency--1935 and 1938; nor were property owners required to pay for 1942 and 1943.

In disposing of the bill of review the Chancellor found that Thacker owned eight lots and had consistently paid assessments on them; or, after default, had redeemed in a timely manner. The only exception was his failure to pay on Lot 4 for 1940. The sale was conducted January 24, 1942. After improperly receiving the deed within a few days Laflin did not undertake to change the tax listing. He did not offer to pay improvement district assessments; nor did he, until 1948, pay state and county taxes. Thacker's 1919 deed was recorded July 16, 1946.

It was stipulated that Laflin did not inform Thacker that he had bought the lot; neither did he, after Thacker's death, bring his claim to the attention of either of the appellees.

Appellant insists the present suit must fail because, as it is urged, the attack is collateral; that proceedings to vacate the order of confirmation had to be brought within six months, and that the long delay bars recovery. Wardlow v. McGhee, 187 Ark. 955, 63 S.W.2d 332, 333; likewise, says appellant, any error in the preliminaries and decree not going to the power to sell was cured by confirmation: and this would include the want of sufficient publication--that is, two weeks beginning when the twenty days had expired. Neff v. Elder, 84 Ark. 277, 105 S.W. 260.

It is also contended that the disparity between actual worth of the property (assuming this was a matter of common knowledge to the commissioners) and the price paid by Laflin was not sufficient to shock the conscience of a court of equity, thereby creating a conclusive presumption that fraud was not practiced on the court in procuring the decree or confirmation. Schuman v. Cherry, 215 Ark. 342, 220 S.W.2d 817. But see Moon v. Georgia State Savings Association, 200 Ark. 1012, 142 S.W.2d 234.

If course, if the order, judgment, or decree is void it may be attacked collaterally. McDonald v. Fort Smith & Western Railroad Co., 105 Ark. 5, 150 S.W. 704. In collateral attacks facts relied upon to avoid consequences of a judgment or decree must appear upon the face of the record. The record includes all of the pleadings Morrison v. St. Louis & S. F. R. Co., 87 Ark. 424, 112 S.W. 975. It also includes exhibits when they are made a part of the pleadings, McMillan v. Morgan, 90 Ark. 190, 118 S.W. 407.

The paving district's complaint of Sept. 23, 1941, shows that Lot 4 was listed as the property of R. E. Johnson. This error was carried into all proceedings where ownership was referred to, hence it definitely appears that the property was treated as belonging to Johnson--a supposition contradicted by the amendment to Laflin's intervention where he affirmatively asserted that 'U. L. Thacker, who was the owner of said lot [at the time it was sold] failed to pay the amount [found to be due the district'].

There can be no contention that the names--U. L. Thacker and R. E. Johnson--are similar. 'Stith' and 'Smith' might cause an honest doubt, but idem sonans can hardly be thought of as a rule sufficiently pliable to reach Thacker when 'h' is the only letter in Johnson common to the two names and phonetics affords no aid.

There is a statement in Stith v. Pinkert, Ark., 234 S.W.2d 45, 48, that Act 207 of 1937, § 4, providing for publication of notice of sale, 'contained no requirement that the owner or supposed owner be named'.

The matter to which reference was there made appears as § 20-444, Ark. Stats. The section immediately preceding directs that all delinquent property be included in one suit, with publication for two weeks by warning order 'or notice of the pendency of such suit'. It is then provided that all persons, firms, corporations, etc., claiming an interest in [the following described real property] shall be treated as having been warned by the notice that suit is pending 'to enforce [the] collection of certain ..... taxes or assessments on the subjoined list of lands, each supposed owner having been set opposite his * * * lands, together with the amount severally due from each'.

The notice emphasized in the sentence quoted from Stith v. Pinkert is the advertisement (for two consecutive weeks) that 'such sale' will be held. The language in Ark. Stats, § 20-444, dealing with 'all cases where notice has been properly given as aforesaid' is directed to procedure preceding the final notice--and this last notice, as the Stith-Pinkert opinion points out, does not require that the name of the owner or the supposed owner be there given.

Prior to 1937 the statute applicable to municipal improvement foreclosure suits, C. & M. Digest, § 5677, required that the last owner of property be named in the suit or warning order, to be listed as the name appeared in the recorder's office. Then (Pope's Digest, § 7308), as now (Ark. Stats, § 20-417), the warrant authorized the delinquent assessment to be made 'from the owners of real property', etc. The direction in Act 125 of 1913, C. & M. Digest, § 5677, Ark. Stats. § 20-424, is that the name of the last owner as shown in the recorder's office must be given 'unless the commissioners know that some other party has acquired title; in which event such actual owner shall be made the defendant'. See compiler's notes, Ark. Stats. v. 2, pp. 1434-35, where, page 1435 it is suggested that § 20-424 may have been superseded or affected by Act 207 of 1937.

Act 101, approved February 17, 1937, and as to the matter pertinent here superseded by Act 207 of the same session, contained language in many respects similar to expressions found in Act 207. A material difference is that Act 101 required the name of the owner to be listed, while Act 207 says that the 'proceedings and judgment shall be in the nature of proceedings in rem, and it shall be immaterial that the ownership [of any lot] be incorrectly alleged in said proceedings, and such judgment shall be enforced wholly against such property, and not against any other property or estate of said defendant'. Ark. Stats. § 20-441.

Act 130 of 1939, Ark....