Smith v. Spillman

• Decision Date: 24 June 1918
• Docket Number: 61
• Parties: SMITH v. SPILLMAN
• Court: Arkansas Supreme Court

205 S.W. 107

135 Ark. 279

SMITH v. SPILLMAN

No. 61

Supreme Court of Arkansas

June 24, 1918

Appeal from Greene Chancery Court; Archer Wheatley, Chancellor reversed.

Decree reversed and cause remanded.

R. P Taylor, for appellant.

1. Under Acts 1911, page 28, appellees had only one year within which to redeem. Act 43, Acts 1915, can not extend the time because it could not be retroactive nor defeat nor impair nor divest vested rights. 127 Ark. 341; 112 Id. 6; 63 Id. 573; 117 Id. 606.

2. After the year expired the time could not be extended. The act is not retroactive nor can not it affect vested rights. 29 Fla. 79; 30 Am. St. 95; 194 U.S. 415; 40 Ark. 423; 51 Id. 453. The limitation expired before the Act of 1915 passed. Cooley on Taxation, (2d ed.) 544-5; 33 Pa.St 94. Appellees had vested rights which could not be impaired by subsequent legislation. 6 Ark. 484; 112 Id. 6; 128 Id. 31.

3. The taxes had not been paid, but if they had the plea can not avail. 50 Ark. 188. The chancery decree can not be thus attacked collaterally.

4. Due notice was had and given. The presumption is that due service was had. Kirby's Dig. § 760; 101 Ark. 390; 105 Id. 5; 49 Id. 397; 200 S.W. 1008.

5. As to the necessity of confirmation of sale, see 99 Ark. 327. See also 86 Ark. 255; 33 Pa.St. 94. Gault's appeal has long since been discredited. See also 23 Ark. 39. Appellees had lost their right to redeem. The right is purely statutory and must be asserted in time. Hence it was lost. 99 Ark. 327; 132 Ark. 309.

R. E L. Johnson, for appellee.

1. Appellant had no vested rights secured by contract or otherwise under the sale by the commissioner. The Act of 1915 provides that "in all cases," etc., the right is extended to five years. The sale was never confirmed. The offer was a mere bid. 24 Cyc. 33; 53 Ark. 307; 23 Id. 39; 32 Id. 391; 34 Id. 346; 45 Id. 41; 51 Id. 338; 54 Id. 480; 105 Id. 265; 62 Id. 215.

2. Redemption statutes are liberally construed. 99 Ark. 328; 37 Cyc. 1383; 33 Pa.St. 94. The act is retroactive but not unconstitutional. See 3 Phila. 333; 69 Ark. 539; 34 Id. 353.

3. Appellees had vested rights and the act is not unconstitutional. It extended their time of redemption. The right of redemption was not under a statute of limition or non-claim. 115 U.S. 620; 33 Pa.St. 94. There is no impairment of the rights by contract or obligations thereof.

4. As to the distinction between mortgage sales and straight tax sales and commissioner's sales, see 51 Ark. 453; 30 Am. St. 95; Cooley on Taxation, 1053-4; Freeman on Ex. § 315; 3 So. Dak. 586; 105 Ark. 261.

5. All the equities of this case are with the appellees and the chancellor so found. The statutory period of redemption may be extended. 27 A. & E. Enc. L., 855; 36 N.D. 331; L. R. A. (N. S.) 1917 E. 137; 36 N.D. 177. Appellant had no vested rights to be divested. The act is a valid act. Hogg v. Nichols, 134 Ark. 280, does not apply, nor does Collier v. Smith, 132 Ark. 309.

McCULLOCH C. J. HART and SMITH, JJ., dissent.

OPINION

McCULLOCH, C. J.

The controversy in this case involves the right of appellees to redeem a certain lot or tract of real estate from sale under decree of a chancery court enforcing a lien for drainage assessments. The chancery court upheld the appellees' asserted right to redemption, and an appeal has been prosecuted from the decree allowing the redemption.

Appellees were the owners of the land in controversy, and the same was assessed for taxation for drainage purposes in a district designated as "Eight Mile Drainage District No. 2," organized under the general statute authorizing the organization of such districts and the levying of special taxes for the purpose of constructing that kind of improvement. Acts 1907, p. 276. In a suit in the chancery court to foreclose the lien for unpaid assessments the chancery court of Greene County rendered a decree in the year 1913 condemning this tract of land for sale to raise funds to discharge the lien for unpaid assessments, and the sale was made by a commissioner of the court on January 14, 1914. Appellant became the purchaser of this tract at the commissioner's sale, which was reported to and confirmed by the chancery court on November 3, 1915, and the commissioner executed a deed to appellant, which was approved by the court. Appellees remained in possession of the land, and this action was originally instituted at law by appellant to recover possession. Appellees filed an answer in the action on March 5, 1917, asserting the right to redeem the land from said sale pursuant to the terms of a statute enacted by the General Assembly and approved February 9, 1915. On motion of appellees the cause was transferred to the chancery court, and a final decree was rendered, as before stated, allowing appellees to redeem. Appellees also alleged in their answer that the drainage taxes on the land in controversy had been paid prior to the rendition of the decree, and they asked that the decree of the court and the sale thereunder be set aside on that account, but the court refused to grant relief on that ground.

The statute in force at the time of the sale provides that "at any time within three years from the date of the sale of said lands, as aforesaid, the owner of the lands may file his petition in the court, rendering the decree, alleging the payment of the amount for which the lien was decreed against said land in said suit, and upon proving the same, the court shall vacate and set aside said decree and sale." Acts 1911, p. 28. The answer of appellees alleging the payment of taxes for which the land was sold was not filed within three years after the date of the sale by the commissioner. Therefore, the statute quoted above was not applicable, and the attack on the validity of the sale on the ground that the taxes had been paid was purely collateral. The court was, therefore, correct in refusing to set aside the decree and sale on that ground. McCarter v. Neil, 50 Ark. 188, 6 S.W. 731; Collier v. Smith, 132 Ark. 309, 200 S.W. 1008.

The right of redemption turns solely upon the validity and effect to be given to the Act of 1915, p. 123, which was approved and went into effect on February 9, 1915, more than a year after the commissioner's sale at which appellant purchased the land, and after the expiration of the period of redemption prescribed by the statute in force on the date of the sale. The statute in force on the date of the sale contained a provision that "any land owner shall have the right to redeem any and all lands sold at such sale within one year thereafter, which shall run from the day when the lands are offered for sale, and not from the day when the sale is confirmed." Acts 1911, p. 28. The sale in question was not an ordinary tax sale, but was one made by a commissioner of the chancery court in a suit authorized by statute to enforce a tax lien. The statute in question authorized the court to render a decree declaring the lien for taxes and ordering the land sold by commissioner at public outcry for cash to raise funds to discharge the lien.

The statute enacted in 1915, supra, under which the present redemption is sought extends to five years the period of redemption under decrees of courts for foreclosure of delinquent assessments. The language of the statute is that "any person, firm or corporation, or the heirs, assigns or legal representatives of any person, firm or corporation, who would have been permitted to redeem had the sale been by the collector for State and county taxes, or who was in possession under color of title at the time of said decree of sale, shall have the right to redeem from said sale at any time within five (5) years," by payment of the prescribed amount to the commissioner. We have, therefore, before us a case where, after confirmation by the court of a judicial sale, the right of redemption is asserted under a statute enacted after the expiration of the time for redemption prescribed in the statute in force at the time of the sale, but before the confirmation in this instance, and the question presented on this state of facts is whether or not it was within the power of the Legislature under such circumstances to enlarge the period of redemption.

We pretermit any analysis of the statute for the purpose of determining whether or not, according to the interpretation of the language used, it was intended by the lawmakers to give retroactive effect to the statute, and we go at once to a consideration of the question as to the power of the Legislature, under the circumstances, to pass such a statute giving it that effect.

We have dealt with this statute in two decisions involving the assertion of the right to redeem from sales of the character involved in the present litigation. Collier v Smith, supra; Hoggs v. Nichols, 134 Ark. 280, 204 S.W. 211. In the first of the cases just referred to there was involved an attempt to redeem under this statute from a confirmed sale made more than a year before the passage of this statute, the law as it existed at the time of the sale allowing one year within which there could be a redemption, and we decided that the Act of 1915 had no application under those circumstances, but that the rights of the parties concerning the redemption must be determined in accordance with the law as it existed at the time of the sale. The doctrine of that case was reiterated in the other case referred to above, but the facts were materially different in that the sale was made less than a year before the passage of the Act of 1915. But we again held that the statute had no application for the reason that the law as it existed at the time of the sale controlled the rights of the parties, and that the Legislature could not thereafter change...