Parr v. Matthews

• Decision Date: 14 April 1888
• Citation: 8 S.W. 22,50 Ark. 390
• Parties: PARR v. MATTHEWS
• Court: Arkansas Supreme Court

8 S.W. 22

50 Ark. 390

PARR v. MATTHEWS

Supreme Court of Arkansas

April 14, 1888

APPEAL from Lawrence Circuit Court, R. H. POWELL, Judge.

Reversed and remanded.

W. R Coody and John K. Gibson, for appellants.

There was no adverse possession by appellee to give title under a void tax deed by limitation of seven years. 45 Ark. 89. His only defence was the two years' limitation under act April 8, 1869, Sec. 138, and July 23, 1868. This act was construed in Ratcliffe v. Scruggs, 46 Ark. 104-5, to refer alone to formal irregularities not prejudicial to the owner.

But the defects in this case are fundamental and jurisdictional affecting the power to levy the tax or sell the land.

The court properly found the tax deed void, and it should have cancelled it and quieted the title of all the plaintiffs. The tax deed was void because,

1. There was no assessment of the land or levy of a tax for 1868. 31 Ark. 341; 47 Id., 329; Acts July 23, 1868, sec. 84. The Act of February 19, 1869, was merely supplemental to the Act July 23, 1868, and both were repealed by act April 8 1869, but continued in force for the collection of taxes of 1868 alone. 34 Ark. 589. A tax levied in 1869 by a special term of the county court for the year 1868 was void. Acts 1868, p. 284, sec. 84; 27 Ark. 417-18.

2. The act of February 19, 1869, did not authorize the county court to levy a tax for 1868; it only provided for its collection. The tax of one per cent. was therefore without legislative authority and void, and avoided the sale. 32 Ark. 138; 42 Id., 100; 29 Id., 342.

See also as to other irregularities in the levy and sale. 29 Ark 489; 32 Id., 31; 47 Id., 300; 33 Id., 748; 24 Id., 459; 31 Id., 491; 14 Id., 410; 30 Id., 739.

OPINION

COCKRILL, C. J.

This is a suit to quiet title. The complaint was filed by the Parrs to cancel a tax deed held by Matthews. The court found that the title to the land was in the plaintiffs, unless it was divested by the tax deed; that the tax deed was good on its face but void in fact; that the land was wild and unimproved; that the defendant, the purchaser at tax sale, had never been in possession, but had paid the taxes for the years subsequent to his purchase; and it was decreed that the adult plaintiffs were barred of their remedy and that the minor plaintiff should be permitted to redeem. The plaintiffs appealed.

The court's finding of facts is sustained by the proof.

The land was sold in December, 1869, for the taxes of 1868. The tax proceedings were had under the act of February 19, 1869--an act passed in aid of the revenue law of July 23, 1868. Pack v. Crawford, 29 Ark. 489; Cole v. Moore, 34 Ark. 582; Hickman v. Kempner, 35 Ark. 505.

The assessor caused his return of the assessment of real property to be filed by the county clerk on the 9th of June, 1869. The county court met within 15 days thereafter, as the act required, to equalize the assessments, and after a series of adjournments, on the 15th of July, 1869, ordered that a tax of one per cent. for county purposes be laid upon the taxable property, presumably for the year 1868. There was no evidence of the levy of any other taxes for that year. But as the act makes the tax deed prima facie evidence of title in the grantee, the presumption is indulged, in the absence of controverting evidence, that the taxes were laid according to law. The supplemental act of February 19, 1869 makes no provision for the levy of taxes. That power was governed, at that time, by the act of July 23, 1868. When the supplemental act was passed, it seems to have been taken for granted that the county courts had performed the duty of levying taxes as prescribed by the revenue law then in force, and the supplemental act was intended to authorize a subsequent assessment and collection of the taxes already levied. It was the policy of the revenue act of 1868 to cause the taxes to be laid before the property assessment was completed. The power to levy taxes for the year 1868 expired with that year by virtue of the 83d and 84th sections of the act of July 23, 1868. Moreover, that act and its supplement of 1869 were expressly repealed by the 159th section of the act of ...