Ramsey v. Long-Bell Lumber Co., 123.

• Decision Date: 31 January 1938
• Docket Number: No. 123.,123.
• Citation: 112 S.W.2d 951
• Court: Arkansas Supreme Court
• Parties: RAMSEY v. LONG-BELL LUMBER CO.

112 S.W.2d 951

RAMSEY v. LONG-BELL LUMBER CO.

No. 123.

Supreme Court of Arkansas.

January 31, 1938.

Appeal from Saline Chancery Court; Sam W. Garratt, Chancellor.

Suit for recovery of land by the Long-Bell Lumber Company against W. A. Ramsey. From the decree, the defendant appeals.

Affirmed.

J. B. Milham, of Benton, for appellant.

McDaniel, McCray & Crow, of Benton, for appellee.

BAKER, Justice.

This suit involves the south half of the southeast quarter, section 7, township 3 south, range 14 west, in Saline county. It was forfeited for the taxes of 1929, and certified to the state in 1931, and on the 7th day of July, 1933, the state land commissioner conveyed this land to Mrs. A. V. Martin and W. A. Ramsey. Thereafter Mrs. Martin conveyed her interest to Ramsey. The Long-Bell Lumber Company, claiming title to this property, filed a suit in which it alleged the invalidity of this tax sale, and this is the question presented for our decision. The court below held the sale bad, from which decree is this appeal.

It is first insisted that the lumber company is a mere volunteer so far as the record before us shows, and, therefore, does not have the right to raise this question. The following facts do appear from the record before us: There was a sale of this land under a partition decree, and the lumber company became the purchaser. The report of this sale and the deed executed pursuant thereto were duly approved. Notwithstanding the sale to the state for the nonpayment of the 1929 taxes, the taxes for 1930 and subsequent years were extended against the land, and were paid by the lumber company. The commissioners' deed in the partition proceeding was at least color of title, and no question as to that deed constituting title appears to have been raised in the court below. However, it was held in the case of Smith v. Thornton, 74 Ark. 572, 86 S.W. 1008 (to quote a headnote), that "one who has paid taxes on land under color of title has a lien on the land for the sums so paid which is a sufficient interest to entitle him to redeem from a tax sale."

Justice Smith, in the early case of Woodward v. Campbell, 39 Ark. 580, 584, speaking of the right to redeem from tax sales, said: "Almost any right, either at law or in equity, perfect or inchoate, in possession or in action, or whether in the nature of a charge or incumbrance on the land, amounts to such an ownership as will entitle the party holding it to redeem."

We conclude, therefore, that the lumber company had the right to redeem from the tax sale if it was, in fact, void.

The decree holding the tax forfeiture invalid contains the following recital and finding:

"The said tax sale and certification to the State was void in that the statute was not complied with in that the collector did not file the delinquent list in which said lands were included within the time prescribed by section 10082 of Crawford & Moses Digest of the Statutes of Arkansas."

It appears that the affidavit required by section 10082, supra, of the collector, upon filing delinquent tax lists with the county clerk, was originally attached to that list, but was subsequently detached and was lost, and cannot now be found. But the clerk, in recording the delinquent list, also recorded the collector's affidavit. The affidavit, as there recorded, contains a jurat reading as follows: "Subscribed and sworn to before me, the County & Probate Clerk of Saline County, this 22nd day of May, 1930."

If the delinquent list was not in fact filed with the county clerk until May 22d, then necessarily it was filed later than the second Monday of that month, the time within which section 10082, Crawford & Moses' Digest, required it to be filed. This failure to file the delinquent list by the second Monday in May rendered the sale void, as the court below found. It was said in the case of Quertermous v. Walls, 70 Ark. 326, 67 S.W. 1014, that "the filing of the delinquent list as the law prescribes is a prerequisite to a valid forfeiture to the state for the nonpayment of taxes." The case of Boyd v. Gardner, 84 Ark. 567, 106 S.W. 942, is to the same effect.

In the case of Brasch v. Western Tie & Timber Co., 80 Ark. 425, 97 S.W. 445, 446, the court construed section 7083, Kirby's Digest (which appears as section 10082, Crawford & Moses' Digest, and is, as amended by Acts 1935, p. 779, § 4, now section 13845, Pope's. Digest). In the trial of that case the court below had held that the sale there involved was void, "for the reason that the affidavit of the collector was not made to the delinquent list for the year 1899, and that the delinquent list was not filed in the time...