McCarter v. Neil

• Decision Date: 14 January 1888
• Citation: 6 S.W. 731
• Parties: McCARTER <I>v.</I> NEIL.
• Court: Arkansas Supreme Court

6 S.W. 731

McCARTER

v. NEIL.

Supreme Court of Arkansas.

January 14, 1888.

Appeal from circuit court, Benton county; J. M. PITTMAN, Judge.

E. S. McDaniel, for appellant. E. P. Watson, for appellee.

SMITH, J.

This was an action of ejectment for 40 acres of land. The plaintiff's title was derived from a sale of the land for taxes, by virtue of a decree of the Benton circuit court, in chancery, exercising its jurisdiction pursuant to a special power conferred upon it by the overdue tax law. At that sale, failing bidders, the land was stricken off to the state; and, no redemption having been effected within the two years allowed bylaw, the state land commissioner sold and conveyed it to the plaintiff and one Bishop. And Bishop afterwards relinquished his interest to the plaintiff. The substantial defense was an alleged payment of the taxes for the year for which the land was condemned by the tax decree. This defense was presented in the form of an answer and cross-complaint against the plaintiff, praying for the cancellation of his deed, and accompanied by a motion to transfer to the equity side of the court. The answer and cross-complaint were adjudged to be insufficient upon demurrer, and, the defendant declining to plead further, final judgment was entered for the plaintiff.

The land commissioner's deed was prima facie evidence that the plaintiff had acquired a valid title to the land. Whether the tax decree, which was the foundation of his title, was open to collateral attack, and could be treated as a nullity, depended on the circumstance whether or not the court which rendered it had jurisdiction over the subject-matter and over the parties concerned. For mere errors, irregularities, and even fraud in its procurement, the judgment could be assailed only in a direct proceeding; that is, by petition in the same case to set it aside, or by some proceeding in the nature of a review on error. Cooley, Tax'n, (2d Ed.) 530; Mansf. Dig. § 3909; Webster v. Diamond, 36 Ark. 532; Herron v. Dater, 120 U. S. 464, 7 Sup. Ct. Rep. 620; Moore v. Woodall, 40 Ark. 42. The difference between a direct and a collateral attack is illustrated by the cases of Lessee of Fowler v. Whiteman, 2 Ohio St. 279, and Trimble v. Longworth, 13 Ohio St. 432, where the same decree, rendered upon constructive service, was under consideration. Now, authority over the res was conferred on the Benton circuit court by the act of March 12, 1881, entitled "An act to enforce the payment of overdue taxes." And authority over the land-owner was acquired by the filing of the complaint, stating that taxes were due on this particular tract, and by the publication of the required notice, which took the place of ordinary process to bring the parties into court. Actual seizure and possession of the land by an officer of the court were not directed, but the mere bringing of the suit was by law made equivalent to a seizure, being the open and public exercise of dominion over the land for the purposes of the suit. Cooley, Tax'n, 525, 526; Cooper v. Reynolds, 10 Wall. 308; Heidritter v. Oilcloth Co., 112 U. S. 294, 5 Sup. Ct. Rep. 135. Being substantially an action in rem, personal service upon the land-owner was not indispensable, but a substituted service might be had, such as was reasonably calculated to bring the proceeding to the knowledge of interested parties. Cooley, Tax'n, 527; Pennoyer v. Neff, 95 U. S. 714; In re Bank, 18 N. Y. 199. Proceedings to enforce payment of delinquent taxes are always summary and essentially in rem, all persons being presumed to be parties. McCarroll's Lessee v. Weeks, 5 Hayw. (Tenn.) 246. Such being the essential nature of the tax suit provided for by the overdue-tax law, the jurisdiction of the court as to a particular tract was not affected by the fact that the taxes upon that tract had previously been paid. And since the objection does not go to the jurisdiction, the decree of the court, condemning the land to sale, is, so long as it stands unreversed and not vacated or set aside, conclusive upon the point that taxes were due. This has several times ruled in states which have by statute established judicial proceedings for the enforcement of taxes. Cadmus v. Jackson, 52 Pa. St. 295; County of Chisago v. Railroad Co., 27 Minn. 109, 6 N. W. Rep. 454; Chauncey v. Wass, 35 Minn. 1, 25 N. W. Rep. 457, and 30 N. W. Rep. 826; Seminary v. Gage, 11 Biss. 289, 12 Fed. Rep. 398; Mayo v. Foley, 40 Cal. 281; Gaylord v. Scarff, 6 Iowa, 179; State v. Sargent, 12 Mo. App. 228; Knoll v. Woelken, 13 Mo. App. 275.

The previous decisions of this court are to the same effect. Wallace v. Brown, 22 Ark. 118, was an action of ejectment, in which the plaintiff's title consisted of a collector's tax deed, fortified by a decree of confirmation rendered by default, without actual service of process. The defendant was the owner of the land at the time of the sale, and had paid the taxes for which the land was sold, and held the collector's receipt. And the decision was that, although a sale of land after payment of the taxes was without power, and a fraud upon the owner's rights, which fraud entered into and vitiated a decree of confirmation, yet in a collateral suit the owner would not be permitted to go behind the decree, and introduce evidence of payment before the sale. Chief Justice ENGLISH, speaking for the court, remarked that the "existence or validity of the debt or demand upon which the suit is founded, at the time of rendering the judgment or decree, is not the criterion of jurisdiction." Williamson v. Mimms, 49 Ark. ___, 5 S. W. Rep. 320, was ejectment by plaintiffs claiming under the land commissioner's deed, based upon a forfeiture and decree in an overdue tax suit; and the same was by the defendant's answer and cross-complaint converted into an equitable action. The court said: "As to the fact of payment of the taxes being in itself a defense to the action, we think it was...