Porter v. Dooley

• Citation: 49 S.W. 1083
• Parties: PORTER v. DOOLEY.<SMALL><SUP>1</SUP></SMALL>
• Decision Date: 29 October 1898
• Court: Arkansas Supreme Court

49 S.W. 1083

PORTER v. DOOLEY.¹

Supreme Court of Arkansas.

October 29, 1898.

Appeal from Arkansas chancery court; James F. Robinson, Chancellor.

Action by P. C. Dooley against J. I. Porter to review and annul a decree confirming a tax sale. There was a judgment for plaintiff, and defendant appeals. Reversed.

Rose, Hemingway & Rose, James A. Gibson, and John B. Jones, for appellant. P. C. Dooley, pro se.

HUGHES, J.

This is an appeal from a decree in chancery in favor of the appellee, setting aside a decree of confirmation of a tax title in favor of the appellant. The decree confirming the tax title of appellant, Porter, was rendered on the 19th of March, 1887. The land, the title to which was confirmed, was sold for taxes on the 14th of April, 1884. The decree of the court setting aside the decree of confirmation holds the decree of confirmation void for the want of jurisdiction to render it, for the want of notice, and the uncertainty as to the land sold. The evidence in the case shows that there was no sufficient description of the lands sold in the advertisement of the tax sale, and that the S. W. ¼ of 22 was described in the advertisement as in 2 S., 4 W., and that in the deed by the officer it is described as in 3 S., 4 W., which was the proper description. The tax deed itself is regular and valid on its face. Had the tax sale been attacked before the decree of confirmation, it is conceded by the appellant that it would have been held void. But "all inquiry as to the validity of a tax title is cut off by a decree of confirmation of the tax sale under which title was acquired." Boehm v. Botsford, 52 Ark. 400, 12 S. W. 786. The tax deed is the muniment of title. The only questions, then, are: Is the decree of confirmation valid? Did the court have jurisdiction? Is there error upon the face of the record that warrants the decree setting aside the said decree of confirmation? The only contention upon these questions is that the proof of the publication of the notice that the appellant would apply to the court for a decree of confirmation is not in accordance with the directions and requirements of the statute, and is insufficient. After prescribing what the notice of confirmation of tax title shall contain, the statute (section 578, Mansf. Dig.) provides that: "The affidavit of one or more of the publishers or proprietors of said newspaper [in which the notice is published], setting forth a copy of such notice, with the date of the first publication thereof and number of insertions, sworn to and subscribed before some justice of the peace of the county or city in which said newspaper is published, with a certificate of magistracy from the clerk of the court of said county, under the seal of his office, on being produced to said court, shall be taken and considered as sufficient evidence of the fact of publication, the date and number of insertions and form of such notice." Section 579, Mansf. Dig., reads: "On producing the proof of said notice, as required in the preceding section, the party publishing the same may apply to the judge of the court aforesaid to confirm said sale," etc. The objection to this proof here is that the justice of the peace before whom it was sworn to is not shown by the certificate of the clerk to be a justice of the peace of that county; that there is no certificate of magistracy. It is contended by the appellant that the above-quoted provision of law was repealed by the subsequent act prescribing the manner of proof of publication of legal advertisements. In the view the court has taken of the question upon the sufficiency of the proof of publication of the notice to apply for confirmation, it is unnecessary to decide whether the latter repeals the former act or not, as we are of the opinion that the proof is good under either act. It will be observed that section 578, Mansf. Dig., does not preclude the idea that the mode of proof of publication of the notice is exclusive of other evidence of the fact of publication,...