Pattison v. Smith

• Decision Date: 25 April 1910
• Parties: PATTISON v. SMITH
• Court: Arkansas Supreme Court

127 S.W. 983

94 Ark. 588

PATTISON v. SMITH

Supreme Court of Arkansas

April 25, 1910

Appeal from St. Francis Circuit Court; Hance N. Hutton, Judge affirmed.

Decree affirmed.

Calvin Perkins and John Gatling, for appellant.

In determining whether or not a deed sufficiently describes land, it will be considered in connection with the plats of the government survey. 73 Ark. 221; 40 Ark. 237; 68 Ark. 554. The act of April 2, 1895 (p. 91), contains no limitation upon the right to attack a decree that is void for want of jurisdiction. 83 Ark. 544. If the decrees were not void on their face, plaintiff has the right to attack them in equity for fraud or mistake. 70 Ark. 157,

Norton & Hughes, for appellees.

The motion to transfer to equity was properly denied. 72 S.W 992; 71 Ark. 222. There is no room for either to have an equitable title. 56 Ark. 391. The case was properly kept in the law court. 65 S.W. 337; 55 S.W. 548; 32 S.W. 599. Appellant's non-residence does not invest her with privileges that a citizen could not have. 21 Wall. 503; 40 F 774; 47 F. 782.

OPINION

FRAUENTHAL, J.

This was an action of ejectment instituted by appellant to recover a tract of land in St. Francis County, Arkansas. The appellant claimed title to the land by mesne conveyances back to one who in 1838 had purchased the land and obtained a patent therefor from the United States. The appellees claimed title thereto under a deed executed by a commissioner of the St. Francis Chancery Court in pursuance of a decree of said court subjecting said land to sale for the nonpayment of levee taxes. The appellees objected to the patent and certain deeds upon which appellant founds her title, upon the ground that the description of the land in said patent and deeds is so imperfect as to render them ineffective to convey the land. We will, however, first determine whether or not the commissioner's deed and decree under which appellees claim title to the land are valid; for, if they are, they would be effective against the title asserted by appellant, even if the conveyances under which she claims are operative and valid.

The decree condemning the land to be sold for the nonpayment of levee taxes was rendered on December 15, 1897, at a regular term of the St. Francis Chancery Court. The suit upon which the decree is based was brought under and by virtue of the provisions of the act of the Legislature approved April 2, 1895, amendatory of the act of the Legislature of February 15, 1893, creating the St. Francis Levee District. Acts 1893, P. 24; Acts 1895, P. 88. These acts of the Legislature make the lands situated in said St. Francis Levee District subject to levee taxes, and provide that the payment thereof shall be enforced against the lands by suit, and that "said suit shall be conducted in accordance with the practice and proceedings of chancery courts in this State." The land involved in this litigation was situated in said St. Francis Levee District, and was subject to the payment of levee taxes. At the time of the institution of the suit for the enforcement of said levee taxes and up to the bringing of this ejectment suit the appellant, who claims to have been the owner of the land during all that time, was a nonresident of the State, and had no actual knowledge of said suit or the proceedings thereunder. It is provided by said acts of the Legislature that notice of the pendency of an action for the enforcement of the collection of levee taxes shall be given to nonresident owners by publication thereof in some newspaper published in the county in which the suit is pending for four weeks prior to the day of the term of court on which final judgment may be entered for the sale of the land. The act further provides that "said proceedings and judgment shall be in the nature of proceedings in rem, and it shall be immaterial that the ownership of said lands may be incorrectly alleged in said proceedings; and said judgment may be enforced wholly against said land and not against any other property or estate of said defendant. All or any part of said delinquent lands for each of said counties may be included in one suit for each county, instituted for the collection of said delinquent taxes, etc., as aforesaid, and all delinquent owners of said lands, including those unknown as aforesaid, may be included in said one suit as defendants." The act further provides: "At any time within three years after the rendition of the final decree of the chancery court herein provided for, the owner of the lands may file his petition in the court rendering the decree alleging the payment of the taxes on said lands for the year for which they were sold, and upon the establishment of that fact the court shall vacate and set aside said decree."

The land herein was proceeded against in said suit as being owned by a nonresident, and was noted in the complaint as owned by the Memphis Land & Timber Company. The appellant, A. H. Pattison, who claims that she was then the owner of the land, was not in name made a party to said suit, but as above stated she was a nonresident. Notice of the pendency of the suit against said land was made and published in the manner and for the time prescribed, and the decree recites that such notice was given as required by the statute. It also finds that the levee taxes on said land for the years of 1895 and 1896 were due and unpaid, and renders judgment for the amount thereof against said land and orders the sale thereof.

It is conceded that the sale of said land under said decree and the confirmation thereof was made in manner prescribed by law. But it is urged that the decree and sale thereunder are void for the reason that appellant had paid the levee taxes on said land for the said years of 1895 and 1896, and because the land was owned by appellant, who was not named as a party defendant in said suit enforcing said taxes.

The St Francis Chancery Court acquired jurisdiction over the subject-matter of enforcing the payment of levee taxes, which were alleged to be due and unpaid upon the land involved in this suit, by virtue of the said acts of the Legislature, and that jurisdiction became complete when it gave the notice of the pendency of the suit in the manner provided by the act. The land was owned by a nonresident, and the chancery court found, and its decree recites, that published notice was given as required by the statute. This finding and recital of the decree is conclusive upon a collateral proceeding. McLain v. Duncan, 57 Ark. 49, 20 S.W. 597; McConnell v. Day, 61 Ark. 464, 33 S.W. 731; Porter v. Dooley, 66 Ark. 1, 49 S.W. 1083; Porter v. Tallman, ...