Plant v. Johnson

• Decision Date: 26 February 1945
• Docket Number: 4-7544
• Parties: Plant v. Johnson
• Court: Arkansas Supreme Court

185 S.W.2d 711

208 Ark. 217

Plant v. Johnson

No. 4-7544

Supreme Court of Arkansas

February 26, 1945

Appeal from Pulaski Circuit Court, Third Division; G. W. Hendricks Judge.

Affirmed.

A L. Rotenberry, for appellant.

Fred A. Snodgress, for appellee.

Verne McMillen and J. H. Carmichael, amici curiae.

McFaddin J. Smith, J., dissenting.

OPINION

McFaddin, J.

The first appeal in this case was dismissed as premature. Johnson v. Plant, 207 Ark. 871, 181 S.W.2d 240. Thereafter the cause was tried in the circuit court, and from final judgment comes this appeal which involves the construction and effect of Act No. 423 of 1941.

Plant filed action in ejectment on February 15, 1944, against Charles Johnson and wife. Lenon intervened and joined Johnson in defense. Plant claimed to be the owner and entitled to the immediate possession of the property. He stated that the defendants were in possession, and deraigned his title as follows: the property (two lots in the City of Little Rock) forfeited to the State for the nonpayment of the taxes of 1937, and was sold by the State for a legal consideration to J. Fielder on January 2, 1941. Fielder conveyed by deed to Plant on November 15, 1941. On November 10, 1942, the State secured a decree of confirmation under Act No. 119 of 1935, and amendatory acts. No objection to the confirmation was made at the time of the decree, nor within one year thereafter. No suit of any kind contesting the tax forfeiture was filed within one year of the decree of confirmation. On this title and showing, Plant claimed title and right to possession.

The defendants and intervener by their answers pleaded that they were the owners of the property prior to the 1937 tax sale, and that the tax sale was based on an unconstitutional and illegal tax levy for the Police and Firemen's Pension Fund of the City of Little Rock, which tax levy was held void in Schuman v. Walthour, 204 Ark. 634, 163 S.W.2d 517. Defendants contended that the tax sale was void and the confirmation decree was void. The defendants were in possession of the property; and they made due tender of all legal taxes, penalties, and costs.

The appellant Plant claimed that by Act No. 423 of 1941 the defendants and intervener lost the right to question the confirmation decree, because the lapse of one year from the tax confirmation decree of November 10, 1942, cut off all right to question the title of the purchaser from the State, except for one point -- i. e., prior payment of the tax -- and there was no claim or allegation of prior payment of the tax in this case.

The cause was tried in the circuit court on an agreed statement reflecting the facts which we have detailed. The circuit court held that Act 423 of 1941 did not have the effect claimed by the plaintiff, and rendered judgment for the defendants and intervener; and there is this appeal. All parties state that the effect to be given Act 423 of 1941 is the point to be decided on this appeal.

I. Except for Act 423 of 1941, This Case Would Be Ruled by Lumsden v. Erstine. The statement in this section will be demonstrated in the following lettered paragraphs.

(a) Sale Under a Void or Illegal Tax. The parties herein stipulated "that said delinquent tax sale of said property for the year 1937 was null and void for the reason, among other reasons, that the said sale was based upon an unconstitutional levy of taxes which included an illegal tax levy for the Police and Firemen's Pension in the City of Little Rock." Regarding this tax and its illegality, reference is made to Adamson v. Little Rock, 199 Ark. 435, 134 S.W.2d 558, and Schuman v. Walthour, supra. There was thus a void tax and an attempted sale which was no sale at all, as shown in (b) below.

(b) A Void Tax Defeats the Power to Sell. In Lumsden v. Erstine, 205 Ark. 1004, 173 S.W.2d 409, 147 A. L. R. 1132, we said "this court has held that the inclusion of an illegal tax defeats the power to sell, and confirmation proceedings cannot cure the defect. Some such cases are: Fuller v. Wilkinson, 198 Ark. 102, 128 S.W.2d 251; Smart v. Alexander, 201 Ark. 211, 144 S.W.2d 25; Sherrill v. Faulkner, 200 Ark. 1006, 142 S.W.2d 229."

(c) The Confirmation Decree Could Not Cure the Void Sale Because the Power to Sell Was Absent. In Lumsden v. Erstine, supra, we said:

"But it has been contended that even if the power to sell was defeated by reason of the excessive charge in the tax sale of 1930, still the confirmation proceedings in 1936 cured the sale of any such defect. We revert to the language of Faulkner v. Binns, Trustee, [202 Ark. 457, 151 S.W.2d 101] and Fuller v. Wilkinson, supra, to show that the confirmation can cure all defects except those that relate to the power to sell. The power to sell is defeated by the excessive charge; so the confirmation proceedings could not cure the defect of excessive charge, because the excessive charge defeated the power to sell. To say that the confirmation proceedings in 1936 cured the illegal taking of property for an excessive charge in 1930 is the same thing as to say that the breath of life can be breathed back into a corpse after a lapse of years."

It, therefore, follows that the effect of the confirmation decree of November 10, 1942, in this case was nil, unless Act No. 423 of 1941 gives it some force. This act was not involved in Lumsden v. Erstine, as we there said:

"At the outset, we point out that Act 423 of 1941 does not apply in this case because the confirmation decree herein was in 1936; and this court held in Schuman v. Walthour, 204 Ark. 634, 163 S.W.2d 517: 'We hold, therefore, that Act 423 was not intended to and does not apply to confirmation decrees rendered prior to its passage, but only to those subsequently rendered'."

II. Act 423 of 1941 Cures Only Voidable Defects. This act amended § 8719 of Pope's Digest and § 2 of Act 318 of 1939. This act consists of four sentences, and we number and emphasize them. The act reads:

"(1) The decree of the chancery court confirming the sale to the State of such real property, as aforesaid, shall operate, except only as subsequently in this section expressly provided, as a complete bar, both at law and in equity, against any and all persons, firms, corporations, quasi-corporations, associations, trustees, and holders of beneficial interests, who may thereafter assert or defend claims to said property, and as a vesting of the complete and indefeasible title to said property in the State and its grantees in fee simple, free and clear of all such claims; and it shall so operate, regardless of whether the sale to the State thereby confirmed may, but for such confirmation, have been voidable because of more defects or irregularities occurring in the proceedings therefor. (2) The owners of any real property embraced in the said decree may, however, by appropriate pleading filed within one year from and after its rendition, attack the said decree insofar as it relates to their property, either in the same cause in the said chancery court or in a separate cause in the same or any other court of competent jurisdiction, upon any ground which would have constituted a meritorious defense to the complaint upon which the said decree was rendered; and any such attack, made within the said one-year period as aforesaid, shall be taken to be direct attack as of the same term when the said decree was rendered. (3) All attacks upon the said decree made after the said one-year period shall be taken to be collateral attacks and shall be wholly ineffectual. (4) Provided nothing in this act shall prevent any person attacking such decree at any time on the grounds that taxes have actually been paid."

It will be observed that the first sentence is divided by a semicolon, and the language after the semicolon modifies and explains all of the language before the semicolon. The language after the semicolon reads "and it shall so operate, regardless of whether the sale to the State thereby confirmed may, but for such confirmation, have been voidable because of more defects or irregularities occurring in the proceedings therefor." We have emphasized the word voidable to show that the decree operates as a confirmation of title only when the sale to the State was merely voidable. This quoted clause makes the decree refer only to voidable defects. The decree could not cure matters that rendered the sale void, and the Legislature, in using the word voidable instead of void thereby recognized that the confirmation decree could only cure voidable defects -- i. e., "mere defects or irregularities occurring in the proceedings therefor," that is, matters that do not go to the power to sell. It could not validate a void sale. Fuller v. Wilkinson, supra, decided by this court in 1939, channeled the limitation of legislative authority in that respect. The absence of the power to sell makes the purported sale herein void, not merely voidable, and the first sentence of Act 423 of 1941 limits the potency of that act to voidable defects. It does not make valid a void sale.

The second sentence of Act 423 gives owners of property where the voidable defect was cured, one year to recover their property. The third sentence relates to attacks after the year. This sentence necessarily refers to attacks that the decree of confirmation could have cured -- i.e., voidable defects. This sentence could not refer to a void sale. The fourth sentence of the act relates to the effect of proof of prior payment.

The essential thought that we desire to establish from this sentence analysis of the act is that it is only a voidable defect that this act cures; and that the absence of "power to sell" is a defect that makes the sale void, not merely voidable. This Court, in the...