Schuman v. Walthour, 4-6784.

• Citation: 163 S.W.2d 517
• Decision Date: 29 June 1942
• Docket Number: No. 4-6784.,4-6784.
• Parties: SCHUMAN et ux. v. WALTHOUR et al.
• Court: Arkansas Supreme Court

Page 517

163 S.W.2d 517

SCHUMAN et ux. v. WALTHOUR et al.

No. 4-6784.

Supreme Court of Arkansas.

June 29, 1942.

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

Suit by J. D. Walthour and another against Manie Schuman and wife for cancellation of a deed by the State Land Commissioner to defendants. From an adverse decree defendants appeal.

Affirmed.

Joseph Brooks, of Little Rock, for appellants.

William S. Mitchell, Jr., and Moore, Burrow & Chowning, all of Little Rock, for appellees.

FRANK G. SMITH, Justice.

From 1923 through 1937, with the exception of 1926, the Pulaski county quorum court, at the direction of the Little Rock City Council, annually levied, in addition to the 5 mills for the City General Fund, a tax of 5/8ths of a mill for the use and benefit of the Firemen's Pension and Relief Fund of that City.

The general taxes on the lots in the city of Little Rock here in litigation were not paid for the year 1932, and the lots were sold to the State for the nonpayment of the taxes. The lots were not redeemed, and after the expiration of the time for redemption the sale was duly certified to the State Land Commissioner, and under authority of Act 119 of the Acts of 1935, p. 318, a decree was rendered confirming this sale on April 28, 1938.

On January 1, 1940, the delinquent taxes on the lots, including those for which the lots were sold and those which would have subsequently accrued, totaled $204.18. On January 4, 1940, appellant applied to the State Land Commissioner to purchase the lots under the provisions of Act 282 of the Acts of 1939. An appraisal of the value of the lots was made, as provided by this Act, and the lots were conveyed, on January 4, 1940, to appellant by the State Land Commissioner for $33.22, the appraised value.

Appellant took immediate possession of the lots and made improvements thereon of the value of $62.

Walthour and Flake acquired the record title of the original owner of the lots, and on June 25, 1941, filed this suit, praying the cancellation of the deed from the State to appellant, and from a decree awarding that relief is this appeal.

The decree required Walthour and Flake to pay appellant Schuman the amount Schuman had paid the State for his deed and the value of the improvements. A tender of these amounts was made when the suit was filed.

It was held in the case of Adamson v. City of Little Rock, 199 Ark. 435, 134 S.W.2d 558, that no authority existed for the levy of the Pension tax in addition to the 5 mills for city purposes, and in the case of Sherrill v. Faulkner, 200 Ark. 1006, 142 S.W.2d 229, 230, it was held that a sale for taxes, including an excessive tax, was void, because the property was sold for taxes not due and which could not be imposed. The case last-cited quotes from the case of Fuller v. Wilkinson, 198 Ark. 102, 128 S.W.2d 251, as follows: "In Fuller v. Wilkinson, * * * it was held, to quote a syllabus: `Where the three mill road tax had not been voted by the electors at the preceding general election, there was no authority for extending the tax against the lands, and a sale of the land for taxes including such road tax is, for lack of power to sell, void and is not cured by a decree of confirmation.' See, also, Adamson v. City of Little Rock, December 4, 1939 [199 Ark. 435], 134 S. W.2d 558." That holding was reaffirmed in the case of Smart v. Alexander, 201 Ark. 211, 144 S.W.2d 25.

Those cases apply, and govern here, and authorize the original owner to attack the confirmation decree where there was lacking power to sell.

It is argued, however, that this right to attack a decree which had confirmed a tax sale where the power to sell did not exist is barred by Act 423 of the Acts of 1941, p. 1227. This is an Act entitled, "An act to amend section 8719 of Pope's Digest of the Statutes of Arkansas, as amended by section 2 of act 318 of the Acts of 1939; and for other purposes."

Section 8719 Pope's Digest is taken from § 9 of Act 119 of the Acts of 1935. This § 9 of Act 119 of 1935 was quoted in full in the case of Fuller v. Wilkinson, supra [198 Ark. 102, 128 S.W.2d 255], where it was contended that this section should be construed as enacting a statute of limitations requiring confirmation decrees rendered under Act 119 to be attacked within one year after the date of their rendition, and not later. In overruling that contention it was there said:

"Does this act allow any period of time, reasonable or otherwise, within which all affected land owners may show cause why the decree should not become final and impervious to attack? The act provides that `the title to said property shall be considered as confirmed and complete in the State forever,' that is, at the time of and upon the date of the rendition of the confirmation decree. It appears to be the purpose and effect of the act to give finality and conclusive effect to the decree of confirmation, not one year after the date of its rendition, but upon its rendition. It is true that certain owners, who can make the showing that they had no knowledge of the pendency of this suit and who have a meritorious defense to the complaint upon which the decree was rendered, are allowed one year for that purpose, but only such persons are allowed that time. All others are concluded from the date of the rendition of the decree, and as to them the decree is as final upon the date of its rendition as it ever becomes."

But Act 423 of the Acts of 1941 is a statute of limitations. It provides that "The owners of any real property embraced in the said decree [rendered under the authority of Act 119] 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. 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. Provided nothing in this Act shall prevent any person attacking such decree at any time on the grounds that taxes have actually been paid."

Now, unlike § 9 of Act 119 of the Acts of 1935, Act 423 of the Acts of 1941 is a statute of limitations, but to what decrees does it apply? Appellant insists that it applies to all decrees rendered under the authority of Act 119, whether those decrees were rendered prior to the passage of Act 423 or subsequent to that date.

If Act 423 is so construed, the effect of that construction will be that the owner's right to redeem from a confirmation decree was barred when the act became effective. The Act was approved March 31, 1941, without an emergency clause, and, therefore, became effective ninety days after the adjournment of the session of the General Assembly at which it was passed.

Appellant insists, therefore, that a reasonable time was afforded the landowner in which to prevent the bar of the statute of limitations from falling. To sustain that contention the case of Steele v. Gann, 197 Ark. 480, 123 S.W.2d 520, 120 A.L.R. 754, is cited. That opinion construed Act 135 of the Acts of 1935, p. 383, which was a statute of limitations on actions for malpractice against physicians and surgeons and certain others. The Act provided that such action must be commenced within three years after the cause of action accrued, and that the time of the accrual of the cause of action shall be the date of the wrongful act complained of. There the cause of action sued on accrued more than three years before the passage of the Act; but it was held that the Act applied to the causes of action mentioned, as the Act did not become effective until ninety days after the passage of the Act, and that a reasonable time was, therefore, afforded within which the plaintiff could have prevented the falling of the bar of the statute of limitations against her cause of action.

Not so here, as Act 423 requires that any attack upon a confirmation decree shall be "filed within one year from and after its rendition", so that, if Act 423 is to be given a retroactive effect and made applicable to decrees rendered prior to its passage it would bar an attack upon any decree rendered a year or more prior to its passage, because, if the Act applies to such decrees, the period of limitation which it prescribes began to run from the date of the rendition of the decree.

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