Logan v. Eastern Arkansas Land Co.

• Decision Date: 09 June 1900
• Parties: LOGAN v. EASTERN ARKANSAS LAND COMPANY
• Court: Arkansas Supreme Court

57 S.W. 798

68 Ark. 248

LOGAN v. EASTERN ARKANSAS LAND COMPANY

Supreme Court of Arkansas

June 9, 1900

Appeal from Independence Circuit Court in Chancery, RICHARD H POWELL, Judge.

Decree affirmed.

H. S Coleman, for appellant.

The manifest intention of the legislature in enacting the law governing tax sales (Sand. & H. Dig., § 6623 et seq.) is clearly to uphold tax sales by every reasonable intendment and the courts should endeavor to effectuate this intent. Appellee failed to support, by any evidence, his allegation that the lands were not legally advertised. The sale was not invalidated by the failure of the clerk to make the certificate required in Sand. & H. Dig., § 6606, before the day of sale. Cf. 34 F. 701; 140 U.S. 634; 55 Ark. 218; 65 Ark. 595. Appellee's complaint was fatally defective in that it failed to allege that he, or those under whom he claimed title, had paid all the taxes due on the land before the bringing of the suit.Sand. & H. Dig., § 6625.

John B Jones, for appellee.

The sale was void because the record did not show the facts prescribed by the statute; and evidence aliunde was not competent to supply the defect. 55 Ark. 218; 140 U.S. 634; S. C. 34 F. 701; 32 Wis. 394. The proof of publication must show that the paper had a bona fide circulation in the county, and that it was published a month before the first insertion. 65 Ark. 90; 52 Ark. 312; 51 Ark. 34.

OPINION

BATTLE, J.

This action was brought by the Eastern Arkansas Land Company against H. G. Logan to quiet title to certain lands described in its complaint. The claim to the lands against which it seeks to quiet its title is based upon a sale of the lands to the defendant in 1895 for the taxes of 1894. It claims that the sale was void, because the clerk of the county court failed to record the list of lands returned delinquent on account of the non-payment of the taxes of 1894, of which the lands in question were a part, and a notice that the same would be sold by the county collector, in a book kept for that purpose, before the day of sale, with a certificate, made by himself, at the foot of such record, stating in what newspaper said list was published, what length of time published, the date of publication, and the length of time the same was published before the second Monday in June then next ensuing. It is conceded that the certificate which the county clerk was required to make at the foot of such record was not made until after the day fixed for the sale. On account of the failure of the clerk to make such certificate in the manner and within the time stated, the circuit court held that the sale of the land in controversy to the defendant for the taxes of 1894 was void, and quieted the title of the plaintiff against the same; and the defendant appealed.

The only question for our consideration in this case was decided in Martin v. Allard, 55 Ark. 218, 17 S.W. 878.In that case the question was, can the certificate which the law requires the clerk to make be superseded by the testimony of the publishers of the list of delinquent lands, showing that the notice of sale was published in the manner required by law. The court said "The statute prescribes that the list of lands delinquent for non-payment of taxes shall be published for two weeks between certain specified dates, with a notice of the intent to sell them. Mansf. Dig. § 5762. It requires the clerk of the county court to record the list and notice of sale in a book to be kept in his office for that purpose, with a certificate showing in what newspaper it was published, for what length of time, and the date of publication. Ib. § 5763. The statute denominates this entry a record; it requires that it shall be made by the clerk before the sale, and provides that it shall be evidence of the facts it recites. Ib. § 5763. And the court further said: "But, conceding that the publisher's testimony goes to the extent of proving...