London v. Montgomery

• Decision Date: 07 April 1947
• Docket Number: 4-8105
• Citation: 201 S.W.2d 760,211 Ark. 434
• Parties: London v. Montgomery
• Court: Arkansas Supreme Court

201 S.W.2d 760

211 Ark. 434

London v. Montgomery

No. 4-8105

Supreme Court of Arkansas

April 7, 1947

Rehearing Denied May 26, 1947.

Appeal from Arkansas Chancery Court, Northern District; Harry T Wooldridge, Chancellor.

Affirmed.

Virgil R. Moncrief and John W. Moncrief, for appellant.

W A. Leach, for appellee.

OPINION

Griffin Smith, Chief Justice.

The action was begun in Circuit Court as a suit in ejectment, with the plaintiffs alleging that they were entitled to possession of forty-six and two-thirds feet "off of the south side of Lots Seven and Eight in Block Thirty-six in Flood's Addition to the City of Stuttgart." The action was transferred to Chancery.

The lots forfeited for 1930 taxes and were duly certified to the State. In 1936 the State's title was confirmed under Act 119 of 1935, and in September, 1942, the Land Commissioner conveyed to appellees. Appellants contend (a) that the original sale and subsequent confirmation were void; (b) there was an illegal assessment of road taxes for 1930 and there were other void assessments, with confusion as to valuation; (c) a recital in the decree shows that certain redemptions had been effectuated, and the decree does not point with certainty to the property so redeemed; and (d) appellees' acts in collecting rents amounted to a redemption.

It is conceded by appellants that the lots are 50 x 140 feet, and if considered as a unit they occupy an area 100 x 140 feet. The description in all of the proceedings prior to the decree was "Forty-six and two-thirds feet S. Side L. 7-8," etc. Insistence is that "side" must be construed to mean half. There is this contention:

"Exclusive of ten feet for alley right of way on the north end and twenty-five feet for street right of way on the south end, each of these lots is 140 feet in length; and exclusive of thirty feet for street right-of-way on the east side, each of these lots is fifty feet wide. The south end of the two lots (combined as a body) has 70 x 100 feet, exclusive of public right-of-way. Therefore, forty-six and two-thirds feet could not be a description of the entire south 'end' or south 'side,' and this necessarily results in having a smaller or lesser body to be taken somewhere out of a larger body."

We think the references to streets and alleys is more confusing than revealing. A drawing will show that if forty-six and two-thirds feet should be taken from the south end, the amount remaining in the south half of each lot would be twenty-three and a third feet. This would leave two lots of the same size north of the severed area, and it seems that the purpose was to divide the lots north and south so that each would have equal areas. The question is, Does south side mean south half, or should it be construed with such meticulous exactness that an ordinary person would be uncertain in respect of the intent?

While as a general proposition the word "side" has reference to the longer dimension of a rectangle, we think the Chancellor was justified in taking a practical view of the obvious and holding that the result intended would direct a purchaser to either the southwest corner of Lot Seven, or the southeast corner of Lot Eight. From these points the measurement would be north 46 2/3 feet; or, if the words "south side" alone be considered, then 46 2/3 feet would extend entirely across, otherwise the two lots would not be reached, for the description clearly covers "L. 7-8."

Records of the Quorum Court show that for 1930 a tax of three mills was levied "for district road purposes." Appellant's contention is that because the Constitution only authorizes a three-mill "county road tax" there was failure to make a valid levy, hence inclusion of ninety cents in the amount for which the property sold will avoid the sale. In Berry v. Davidson, 199 Ark. 276, 133 S.W.2d 442, Mr. Justice Baker said that where taxes have been levied against land, "however defectively that may have been done," the power to sell for non-payment exists, and confirmation under Act 119 of 1935 cures all defects. To the same effect is Faulkner v. Binns, Trustee, 202 Ark. 457, 151 S.W.2d 101.

Contending that there is no power to levy a district road tax, appellants say: "Road districts are created in various ways and with various and different functions and with officers or overseers having different powers -- some, we believe, being created by local acts prior to the anti-local amendment."

Assuming there could have been locally created districts, there is no suggestion that such was true: nothing more than a possibility. Again, the result represents merely an irregularity. Undoubtedly the tax was for county road purposes, and this being true, there was no illegal exaction.

Taxes were extended pursuant to Act 172 of 1929 as follows "Value of lot, 300; value of improvements, 200; total value, 300." Because 300 and 200 do not make 300, it is insisted the assessment is void on its face; and for want of a decimal point appellants do not know whether the figures represent dollars, cents, or mills. Schultz v. Carroll, 157 Ark. 208, 248 S.W. 261; Carter v. Wesson, 189 Ark. 942, 75 S.W.2d 819; and Mixon v. Bell, 190 Ark. 903, 82 S.W.2d 33, are cited. The Schultz-Carroll case involves the levy of school taxes. After listing District No. 103, the extension was, "Amount tax voted, 7; for what purpose, 5 gen. 2 bldg." Mr. Justice Humphreys, in writing the Court's opinion, said that these figures, standing alone, were meaningless. In a dissenting opinion Chief Justice McCulloch said: "The Constitution authorizes the school tax in mills, and we should indulge the presumption that the figure in the record was...