Quertermous v. Walls

• Decision Date: 12 April 1902
• Citation: 67 S.W. 1014
• Parties: QUERTERMOUS v. WALLS.
• Court: Arkansas Supreme Court

67 S.W. 1014

QUERTERMOUS v. WALLS.

Supreme Court of Arkansas.

April 12, 1902.

Appeal from Arkansas chancery court; W. L. Wooldridge, Special Chancellor.

Action by A. B. Quertermous against Thomas Walls. From a judgment in favor of defendant, plaintiff appeals. Reversed.

P. C. Dooley and Pugh & Wiley, for appellant. Jas. A. Gibson and Jno. F. Park, for appellee.

WOOD, J.

The appellee admitted "that the tax sale records show that the delinquent list was filed by the deputy sheriff, instead of the collector, and the certificate of the clerk of the publication of the delinquent list does not recite that said papers [in which the delinquent list was published] had a bona fide circulation [in the county] for 30 days before the first issue of publication; and that there was no separate book, wherein a record of said tax sales was entered, kept by the clerk of Arkansas county prior to 1894." These admissions show that the forfeiture for taxes and the donation deed under which appellee claims title are void.

1. Section 6603, Sand. & H. Dig., provides that "the collector shall * * * file with the clerk of the county court a list or lists" of delinquent taxes. The sheriff being ex officio collector, what he does in the capacity of collector must be taken as done by the collector. While the offices are distinct, their functions are performed by the same individual. At least, this must be taken as prima facie true. Brown v. Rushing (Ark.) 66 S. W. 442; Keith v. Freeman, 43 Ark. 296; Budd v. Bettison, 21 Ark. 582. But this rule does not apply to deputy sheriffs. They are not ex officio deputy collectors. It will not be presumed that a deputy sheriff is also a deputy collector. Crowell v. Barham, 57 Ark. 195, 21 S. W. 33. The delinquent list was filed by the deputy sheriff. The law does not authorize him to file such list. The filing of the delinquent list as the law prescribes is prerequisite to a valid forfeiture to the state for the nonpayment of taxes. Without such list, no notice could be published, and no sale could be had. Blackw. Tax Titles, § 199.

2. The statute (Sand. & H. Dig. § 6612) provides: "The clerk * * * shall record in a separate book, to be kept for that purpose, each tract of land * * * sold to the state, together with the taxes, penalty and cost due thereon." The failure of the clerk to keep this record, as shown by the admission, rendered the sale to the state for the nonpayment of taxes void. The provision for the keeping of this record is mandatory. It is all-important to the landowner, for it furnishes him the only record evidence of the taxes, penalty, and costs for which his land was sold. Cooper v. Lumber Co., 61 Ark. 36, 31 S. W. 981, 32 S. W. 494; Salinger v. Gunn, 61 Ark. 414, 33 S. W. 959. It was...