Massengale v. Brown
| Decision Date | 25 June 1923 |
| Docket Number | 68 |
| Citation | 252 S.W. 588,159 Ark. 566 |
| Parties | MASSENGALE v. BROWN |
| Court | Arkansas Supreme Court |
Appeal from Prairie Chancery Court, Northern District; John M Elliott, Chancellor; affirmed.
Decree affirmed.
Emmet Vaughan, for appellant.
Tax sale was void because there was no competitive bidding. 70 W.Va. 136, 73 S.E. 261; 2 Ohio 504, 15 Am. Dec. 576; 6 Wall 268, 18 U. S. L. ed. 796; 31 Ia. 578; 37 Ia. 601; 1 Blackwell on Tax Titles, 559; 2 Cooley on Taxation, 943. It is undisputed that there was an agreement among the persons present at the sale not to bid against each other. Tax levy was void. Taxes were levied, before the appropriations were made, contrary to law. Insufficient penalty added. C. & M Digest, 10086; 37 Cyc. 1289, 1290, note 65; 155 Mich. 502 119 N.W. 912; 112 N.W. 930; 37 Cyc. 1338; 83 N.E. 730; 41 Kan. 751, 21 P. 776. Defendant denied that plaintiff acquired title under the sheriff's sale, but his deed was color of title entitling it to redeem. 39 Ark. 580; 42 Ark. 215; 74 Ark. 572; 76 Ark. 551; 74 Ark. 343.
F. E. Brown, pro se.
Plaintiff must show title in himself, in order to have an outstanding tax deed canceled as a cloud on his title, under § 10110, C. & M. Digest. Necessary for plaintiff to show title in himself or that title was obtained from the United States or from this State after the sale, all of which he failed to do. Did not even testify that he was the owner of the land when it was sold for taxes. 73 Ark. 557; 84 Ark. 1; 133 Ark. 559; 99 Ark. 137. To avoid a tax sale the unlawful combination between the bidders must be clearly and conclusively proved. Ann. Cas. 1913-D 959; 134 N.W. (N. D.) 43. Testimony does not show levy made before appropriations. Case is controlled by 142 Ark. 293.
OPINION
This action was instituted by the appellant against the appellee. The appellant alleged that he is the owner of a certain tract of land, which he described in his complaint; that he acquired title thereto as follows: "Cain, sheriff, to J E. Massengale, trustee deed, dated September 4, 1908, and recorded in Deed Record Book 3, p. 117." He alleged that he is a nonresident of the State, and that Harry M. Woods of Augusta, Arkansas, was his agent, with instructions to pay the taxes on the land, but that he failed to pay same for the year 1914, and the same was returned delinquent for that year; that appellee, Brown, purchased the land at a tax sale by the collector of Prairie County on the 10th day of June, 1915, for the taxes of 1914, and on the 25th day of June, 1917, received a clerk's deed therefor and had the same duly recorded in the records of the Northern District of Prairie County. He set up that the tax sale was void for the reason that the land was not sold at competitive bidding, as required by § 8739 of Kirby & Castle's Digest; that the bidding at the sale was stifled by agreement of the bidders not to bid against each other, but to bid the lands in as a whole, each bidder taking his turn as the land numbers were called, and also because there was no legal levy of school, county or road taxes in School District No. 10 for the year 1914, and because the clerk erred in charging only the penalty of ten per cent., when the penalty of twenty-five per cent. is required by law. The appellant tendered, in his complaint, the taxes and expenses incurred by the appellee for tax deed, and alleged that the appellee's deed was a cloud on his title, and prayed that the deed be canceled.
The appellee answered, and denied the allegations of the complaint. The appellant filed an affidavit that he had tendered the taxes to the appellee. To sustain his complaint, the appellant deraigned title through one W. R. Cain, acting sheriff of Woodruff County, substituted trustee in a deed of trust, by which the land in controversy was conveyed, under a special power and according to the terms specified in the deed of trust, from the American Sawmill Company, a corporation, to the Massengale Lumber Company.
Testimony was adduced bearing upon the other issues raised in the complaint and answer, but the conclusion we have reached makes it unnecessary to set it forth. The court rendered a decree dismissing the complaint for want of equity, from which is this appeal.
Section 10110, Crawford & Moses' Digest, among other things provides as follows: "But no person shall be permitted to...
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