Schuman v. Metropolitan Trust Co., 4-5676.

• Decision Date: 27 November 1939
• Docket Number: No. 4-5676.,4-5676.
• Citation: 134 S.W.2d 579
• Parties: SCHUMAN et al. v. METROPOLITAN TRUST CO.
• Court: Arkansas Supreme Court

134 S.W.2d 579

SCHUMAN et al. v. METROPOLITAN TRUST CO.

No. 4-5676.

Supreme Court of Arkansas.

November 27, 1939.

Rehearing Denied January 8, 1940.

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

Suit by the Metropolitan Trust Company against Manie Schuman and others to set aside tax forfeiture and sale and deed thereunder. From a decree for plaintiff, defendants appeal.

Affirmed.

Fred A. Snodgress, Lee Ward, and O. T. Ward, all of Little Rock, for appellants.

Taylor Roberts, of Little Rock, for appellee.

MEHAFFY, Justice.

The appellee, Metropolitan Trust Company, filed suit in the Pulaski Chancery Court alleging that it was the owner of and in possession of the property described in its complaint; that it was the owner of said property by virtue of mesne conveyances from the United States Government; it further alleged that it was informed and believed that the appellant, Manie Schuman, on January 3, 1939, obtained from the State Land Commissioner, Otis Page, a forfeited land deed which purports to convey the said land under a forfeiture and certification to the State for the delinquent taxes for the year 1935; that the sale of said land to the state for taxes was void and conveyed no title, and that the deed from the Commissioner of State Lands to Manie Schuman was void and invalid and conveyed no title. Appellee then, in its complaint, alleges eleven reasons why the tax sale was void, and states that before filing suit it had tendered to the appellant, Manie Schuman, the amount of taxes for which the land forfeited, with interest thereon, together with all taxes subsequently paid by appellant; no improvements or betterments had been placed on the property, and the tender of taxes had been refused by the appellant. The affidavit of such tender was filed in the office of the chancery clerk before filing suit; that the appellant, Florence Schuman, claims some interest in the property as the wife of appellant, Manie Schuman; that the deeds above mentioned constituted a cloud on petitioner's title. The prayer was that the deed from the State of Arkansas to Manie Schuman and Florence Schuman, his wife, be canceled, set aside and held for naught, and that the sale of said lands to the State of Arkansas for the taxes of 1935 be declared void.

The appellants answered denying all of the material allegations in the complaint, and prayed that the appellee take nothing and that their title to said property be confirmed.

The court found that the sale by the collector of Pulaski County on November 2, 1936, of said lands to the State of Arkansas for the non-payment of taxes for the year 1935 was void and invalid and conveyed no title to the State of Arkansas, and that the deed from Otis Page, Commissioner of State Lands, to Manie Schuman, is void and invalid and conveyed no title; that the said tax forfeiture for the taxes of 1935 and the sale of said lands by the collector on November 2, 1936 to the State of Arkansas, and the deed from the State Land Commissioner to the appellant constituted a cloud upon appellee's title and that said tax forfeiture and sale should be canceled and set aside and held for naught. The court further found that prior to the institution of the suit and immediately after the sale by the State to appellant, the appellee tendered to the appellant the amount of money appellant paid to the State Land Commissioner, and that said tender was again made in open court and refused by appellant. A decree was entered according to the findings of the court.

The appellants excepted and prayed an appeal to the Supreme Court. The case is here on appeal.

The evidence showed that the amount of taxes and interest had been tendered to the appellant before suit was brought.

L. A. Mashburn, Pulaski County Clerk, who was chief deputy prior to January 1, 1939, testified from the records that the property was sold in November, 1936, for the delinquent taxes of 1935; that the record of delinquent taxes was on page 40 of the record; that it was published in the newspaper and the land was sold in 1936. He then introduced the certificate of the publisher of the notice, which shows that the first publication was made on October 24, 1936, and the last on October 31, 1936. The certificate of the county clerk was introduced by B. T. Hoff, clerk of the county court, certifying that the record, pages 1 to 355 inclusive, contains a true and correct amount of the delinquent lands and that said list was published in the Arkansas Gazette, the first publication being on October 24, 1936, and the last on October 31, 1936.

The appellant, Manie Schuman, testified that the appellee offered his money back plus $20 for the five acres, and made no reference to the seven-acre tract and a fraction tract; that his business was tax title and oil business; he buys all over the country; is at the State Land Office a good deal of the time; sometimes deeds lands back for what it costs him; does not want to hold anybody up.

Appellant argues that there is but one question involved, and that is: Does the failure of the clerk to "make the certification of the publication of the delinquent list before the day fixed for the sale of said lands" render the sale void? Appellant further states:

"The evidence establishes the fact that the sale of the lands involved herein occurred on the 2nd day of ...