Smart v. Alexander

• Decision Date: 28 October 1940
• Docket Number: 4-6069
• Citation: Smart v. Alexander, 144 S.W.2d 25, 201 Ark. 211 (Ark. 1940)
• Parties: SMART v. ALEXANDER
• Court: Arkansas Supreme Court

144 S.W.2d 25

201 Ark. 211

SMART v. ALEXANDER

4-6069

Supreme Court of Arkansas

October 28, 1940

Appeal from Jackson Chancery Court; A. S. Irby, Chancellor reversed.

Decree affirmed.

H. S Grant, for appellant.

Gustave Jones, for appellee.

OPINION

MCHANEY, J.

Appellant brought this action to have declared void a tax forfeiture and sale to the state of 80 acres of land in Jackson county which occurred in June, 1933, for the taxes of 1932; to cancel a donation certificate and a donation deed from the state to appellee, the latter dated May 3, 1939; and to recover the possession of said land from appellee.The complaint alleged the invalidity of the forfeiture and sale to the state because the quorum court of Jackson county levied a tax of 1/10 mill for the Crippled Children's Home and Hospital which was in excess of the constitutional limit of 5 mills for all county purposes which had been levied.It was also alleged that the donation certificate and the donation deed to appellee were void because the land was improved and had more than $ 200 in improvements on it and was not subject to donation; that false and fraudulent statements were made by appellee, the county judge, circuit clerk and surveyor in making proof to get the donation deed from the state; and that appellee was his tenant, and, as such, could not acquire her landlord's title.The prayer was, among other things, that he have judgment for the possession of said lands, and for writs of assistance to place him in possession.Appellee demurred to this complaint, which was overruled, as was also a motion to make more definite and certain.She then moved to dismiss for failure of appellant to file an affidavit of tender of taxes and improvements on or before filing his complaint, as required by § 4663 of Pope's Digest, or suffer dismissal of the action as provided by § 4664.The court sustained this motion.Appellant declined to plead further and his complaint was dismissed.There is here an appeal and a cross-appeal.

We think the court erred in sustaining the motion to dismiss and in dismissing the complaint for failure to file the affidavit of tender.

The complaint alleged that the quorum court levied a tax of 1/10 mill for the Crippled Children's Home and Hospital in addition to the 5-mill constitutional limit for county purposes, which was admitted by the demurrer, and we held in the recent case of Sherrill v. Faulkner,200 Ark. 1006, 142 S.W.2d 229, that a tax levy in excess of five mills for county purposes was void and that a sale of land for such a tax was void, citing Fuller v Wilkinson,198 Ark. 102, 128 S.W.2d 251.In the latter...