Pinkert v. Lamb

• Decision Date: 17 October 1949
• Docket Number: 4-8901
• Citation: 224 S.W.2d 15,215 Ark. 879
• Parties: Pinkert v. Lamb
• Court: Arkansas Supreme Court

224 S.W.2d 15

215 Ark. 879

Pinkert v. Lamb

No. 4-8901

Supreme Court of Arkansas

October 17, 1949

Appeal from Pulaski Chancery Court; Frank H. Dodge, Chancellor.

Reversed.

William J. Kirby and U. A. Gentry, for appellant.

J H. Carmichael, Jr., J. H. Carmichael, Sr., and Tilghman E. Dixon, for appellee.

OPINION

Minor W. Millwee, Justice.

This cause was begun by appellant, Ed Pinkert, as an action in ejectment in Pulaski Circuit Court to establish title and right to possession to the west 1/2 of lots 1 to 6 inclusive, block 8, Adams Addition to the City of Little Rock. Appellant claimed title through mesne conveyances from Sewer Improvement District No. 94 of Little Rock which purchased the lots at the commissioner's sale pursuant to a decree of the Pulaski Chancery Court rendered November 23, 1937, condemning said property to be sold for delinquent assessments.

Although the complaint alleges that appellee, John Lamb, was in possession of the lots as tenant of James H. Stith, it was stipulated that appellee, Ella Stith, widow of James H. Stith, was the record title owner prior to sale of the lots to the improvement district and held possession through the tenant, Lamb. In their answer appellees attacked the foreclosure decree and sale of the property thereunder as being void for various reasons, and charged that the decree, the deed from the commissioner thereunder and the deed to appellant constituted a cloud upon appellees' title and should be canceled.

The cause was transferred to the chancery court where trial resulted in a decree finding all the issues in favor of appellees; finding that the sale of the property under the 1937 foreclosure decree was void and that the deeds executed pursuant thereto, including the deed to appellant, should be cancelled and that title to the property should be quieted and confirmed in appellee, Ella Stith. This appeal follows.

The property in controversy is situated in Sewer Improvement District No. 94. In 1927, the district filed suit in chancery court to foreclose its lien for delinquent assessments, but the record does not reflect that the lots here involved were included in the original proceeding. There was evidence of personal service on James H. Stith in 1931, but any delinquencies against the lots in controversy prior to 1931 were presumably paid and the lands redeemed. Later the pleadings were amended to foreclose for delinquencies for subsequent years and the decree of November 23, 1937, was entered condemning the lands herein to be sold for the delinquent assessment for the year 1934. Pursuant to the 1937 decree the lots were sold to the district on March 16, 1938, and the sale confirmed April 12, 1938.

On August 20, 1943, the chancery court, on petition of a receiver of the district, authorized the latter to sell to James Newsome 340 certificates of purchase at $ 5.50 each, which included the certificate of purchase covering the lots herein. Thereafter Newsome assigned the certificates of purchase to Jack Barry who in turn assigned the certificates to W. I. Stout, Trustee. After expiration of the time for redemption the commissioner of the court, upon the petition of W. I. Stout, Trustee, and order of the court pursuant thereto, executed and delivered to W. I. Stout, Trustee, a deed to the property on October 12, 1943, and same was approved by the court on the same date. Prior to execution of this deed Mary Kimbrough filed an intervention for herself and others similarly situated, attacking the sales of the certificates of purchase and asking that same be canceled and that all owners be permitted to redeem from the commissioner's sale. A consent decree was rendered on September 30, 1943, as a result of this intervention which gave owners of the delinquent lands involved 120 days to redeem from the sale by payment of all delinquencies. The decree further provided that the title to all property not redeemed within the 120 day period should vest unconditionally in the said W. I. Stout, Trustee. The lots here involved not having been redeemed, W. I. Stout and wife conveyed the property by quit claim deed to appellant for a valuable consideration May 26, 1944.

It was further stipulated that benefit assessments were made and taxes levied against the west half of lots 1 to 6, inclusive, block 8, Adams Addition to the City of Little Rock, as a single tract rather than against each separate lot or parcel, and that same was sold by the commissioner under the 1937 decree under the same description and as a single tract.

This is a collateral attack by appellees on the 1937 foreclosure decree and sale made pursuant thereto, and the burden was on them to prove such defects therein as would render the sale and decree void. Since the trial court found in appellees' favor as to all issues, we proceed to a consideration of the alleged defects upon which appellees rely to sustain the decree.

I. Collusion and Inadequacy of Consideration in Sale of Certificates of Purchase. The case of Schuman v. Cherry, ante, p. 342, 220 S.W.2d 817, involved the validity of the proceedings now under attack. The appellees there, as here, relied upon the cases of Eddy v. Schuman, 206 Ark. 849, 177 S.W.2d 918, and Schuman v. Eddy, 207 Ark. 925, 184 S.W.2d 57 to sustain their charge of inadequacy of consideration and collusion in sale of the certificates of purchase. These cases involved a class suit brought by a property owner in an improvement district for protection of the interests of the landowners and the district. In Schuman v. Cherry, supra, we said: "In the present suit, the district and the commissioners are not parties; so the Schuman-Eddy cases are not in point. Appellees' purpose is not to protect the rights of the district and property holders, but to obtain a title for the appellees. Again -- for the sake of argument and without deciding the question -- if we concede that the sale of the certificates to Newsome should be set aside, still that holding would return the certificates to the district and would not benefit the appellees, because -- as heretofore stated -- they had only five years from the foreclosure sale in which to redeem. See Hopkins v. Fields, 202 Ark. 890, 154 S.W.2d 22. The time for redemption has long since expired, so appellees are not benefited, whether the title to the three lots be in the appellant or in the district."

While appellees alleged in their answer that there was collusion on the part of the commissioners and the purchaser in the sale of the certificates of purchase, they introduced no evidence to sustain this allegation. We are asked to overrule Schuman v. Cherry, supra, but we decline to do so. whet we said in that case applies here, and the sale of the certificates of purchase, though invalid, would not affect the jurisdiction of the court to render the decree and would not render the sale of the property made thereunder void on collateral attack.

II. Insufficient Description. The property involved was assessed and sold as "West 1/2 of Lots 1-6, incl., Block 8, Adams Addition to the City of Little Rock." It is insisted that this is an invalid and indefinite description which renders the sale void. Appellees cite a number of cases, but none of them involve a description similar to the one here employed. It cannot reasonably be contended that superior or technical knowledge would be required to locate the west half of named lots in a given block in a platted addition such as is involved here. We hold the description valid and sufficient.

III. Property Not Assessed Nor Sold According to Law, and Sold En Masse for Only Part of Indebtedness. Appellees say that a sale of property en masse is void even when the property is assessed en masse as a single tract. It is also insisted that it is mandatory under our statutes that each parcel of land be assessed separately. The case of Board of Commissioners, Paving Improvement District No. 13 v. Freeman, 201 Ark. 1061, 148 S.W.2d 1076, involved a foreclosure for delinquent assessments in a municipal improvement district where the assessment was against lots 2, 3, 6 and north half of lot 7 in a given block. In construing the statute now appearing as Ark. Stats. (1947), § 20-404, which prescribes the method of making assessments, the court said: "We think a fair construction of the act is that where one person owns several lots, blocks or parcels of land in an improvement district the benefits to them may be assessed together. It certainly was not the intention of the Legislature where a person owned a large number of lots in an improvement district that benefits to each of his lots, blocks or parcels of land, in order to be valid, must be assessed to each lot, block or parcel of land owned by him. This construction would certainly entail a lot of unnecessary labor on the part of the assessors where one assessment would answer the purpose. A majority of this court in construing a statute similar to this relating to drainage districts, in the case of Curtsinger v. Burkeen, 126 Ark. 94, 189 S.W. 673, ruled that an assessment of benefits en masse was not void."

In Hires v. Douglas, 198 Ark. 559, 129 S.W.2d 959, relied on by appellees, the sale was for a gross sum of several lots separately assessed which was held to be void. Here the property was assessed as a single tract and the foreclosure and sale were in solido and were not thereby rendered invalid.

Appellees also urge that the property sold at the foreclosure sale for only the delinquent tax and penalty, without interest and costs, which amounted to a fatal defect. It is true that Hires v. Douglas, supra, formerly was authority for appellees' contention that the lands must be sold for the taxes, interest, penalty and costs, and that if all of...