Lincoln Nat. Life Ins. Co. v. Wilson, 4-5716.

• Decision Date: 22 January 1940
• Docket Number: No. 4-5716.,4-5716.
• Parties: LINCOLN NAT. LIFE INS. CO. v. WILSON.
• Court: Arkansas Supreme Court

135 S.W.2d 846

LINCOLN NAT. LIFE INS. CO. v. WILSON.

No. 4-5716.

Supreme Court of Arkansas.

January 22, 1940.

Appeal from Miller Chancery Court; A. P. Steel, Chancellor.

Suit by the Lincoln National Life Insurance Company against Stuart Wilson, receiver for the Garland Levee District of Miller County, to cancel three decrees of the Miller Chancery Court, condemning certain lands belonging to plaintiff for sale for levee taxes in the Garland Levee District of Miller County, the sales had thereunder, and the deeds issued pursuant thereto. Others who had purchased certain lands other than those claimed by plaintiff from the Garland Levee District were permitted to intervene. From decree dismissing plaintiff's complaint, the plaintiff appeals.

Affirmed.

H. M. Barney and Frank S. Quinn, both of Texarkana, for appellant.

Henry Moore, Jr., and T. B. Vance, both of Texarkana, for appellee.

McHANEY, Justice.

This is a suit by appellant to cancel, set aside, and hold for naught three decrees of the Miller Chancery Court, condemning certain lands belonging to it for sale for levee taxes in the Garland Levee District of Miller County, the sales had thereunder and the deeds issued pursuant thereto. The suit was instituted on February 17, 1939 against appellee Wilson as receiver for the district, and the other appellees were permitted to intervene in the action because they had each purchased certain lands from the district, lands other than those claimed by appellant, the title to which depend on the validity of said decrees and sales.

H. S. Dorsey formerly owned the lands claimed by appellant. In 1928 he and his wife executed deeds of trust on said lands to secure certain indebtedness, which were assigned to appellant. Foreclosure and sale followed and appellant became the purchaser at that sale in March 1937. Dorsey failed to pay the levee taxes against said lands for 1930 and 1931 and suit was brought by the district May 1, 1933, in cause No. 3811 in the Miller Chancery Court, to foreclose the district's lien for taxes. Personal service was had on Dorsey and notice of suit was published for the time and in the manner prescribed by the Act creating the district, Act 311 of 1913, p. 1267, and as re-enacted, Act 56 of 1917, p. 235. Dorsey and others made default and a decree of foreclosure was entered condemning said lands for sale for the taxes due thereon for said years on July 27, 1933. The lands were sold by the commissioner to the receiver on February 28, 1935, for the taxes, penalty and costs, and the commissioner's deed to the receiver was approved and confirmed April 25, 1935. Thereafter, while the title to said lands was in the receiver suit was brought, in 1936, to foreclose the district's lien for taxes delinquent against said lands for the years 1932 and 1933, which resulted in a decree, sale and confirmation to the receiver; and again, in 1937, the same thing occurred for the delinquent taxes of 1934 and 1935. In the present action it was admitted by the receiver and appellant that if the sale and deed in cause No. 3811 for levee taxes of 1930 and 1931 were valid, the lands, being owned by the district or its receiver, they could not again be sold for levee taxes, since the title was in the district, under the authority of Crowe v. Wells, River Savings Bank, 182 Ark. 672, 32 S.W.2d 617 and Oliver v. Gann, 183 Ark. 959, 39 S.W.2d 521.

The grounds upon which appellant relied in the court below, and which are urged here, to cancel the sale in cause No. 3811, are: (1) That the chancery court was without jurisdiction in cause No. 3811 because the complaint therein failed to allege any delinquency in the lands set out; (2) because the decree therein was prematurely entered; and (3) because the title to said lands, at that time, was in the state which suspended the lien for levee taxes. On these questions, issue was joined and trial resulted in a decree dismissing appellant's complaint for want of equity, as to the proceedings and sale in cause No. 3811, which were held valid, and in holding the proceedings in the subsequent sales above mentioned, invalid. This appeal followed, and it is conceded this suit is a collateral attack on the decree in cause 3811 entered in 1933.

(1) As to the first contention, that the complaint in cause No. 3811 failed to allege that the lands listed therein were delinquent and because thereof the court had no jurisdiction, we cannot agree with appellant. The complaint alleges in paragraph 4: "That there lies within Garland Levee District * * * among other lands assessed for taxes for the years 1930 and 1931, the following:" (Then follows a list of the lands of appellant in the name of Dorsey, with the legal description of each tract and the...