Streett v. Reynolds

• Decision Date: 10 October 1896
• Citation: 38 S.W. 150,63 Ark. 1
• Parties: STREETT v. REYNOLDS
• Court: Arkansas Supreme Court

38 S.W. 150

63 Ark. 1

STREETT v. REYNOLDS

Supreme Court of Arkansas

October 10, 1896

Appeal from Chicot Chancery Court, J. G. WILLIAMSON, Special Chancellor.

STATEMENT BY THE COURT.

This is a bill to remove a cloud from the title to the west part of the northeast quarter of section 22, township 17 south, range 2 west, 7.70 acres, and the north half of the northwest quarter of section 22 in the same township and range, 69.80 acres, both of which tracts were wild and uncultivated, and not in the actual possession of any one, when this suit was brought.

The facts, as found by the chancellor, are that a decree of condemnation, under the overdue tax act, was rendered at the January term, 1882, by the Chicot circuit court in chancery based upon an arbitrary valuation of the lands condemned for sale, and not on the valuations placed on them by the assessor before the forfeiture, or by order of court; that said decree, rendered at the January term, 1882, was set aside and held for naught at the July term, 1882, on the 25th of September, 1882, (which was an adjourned term of the court) as to the N. 1/2 N.W. 1/4 section 22, township 17 south, range 2 west, but not as to the 7.70 acre tract. At said adjourned term, said tract in section 22, under order of the court, was re-assessed by the assessor, and the court decreed said lands to be sold for the taxes, etc., and it was sold and purchased by the defendant, the appellee.

Each of the said sales was reported to and confirmed by the court at said adjourned term, and the sale of the 7.70 acre tract was subsequently confirmed by the court at the July term, 1888 which was held by the regular judge; and the deed for the 69.80 acre tract was approved at the July term, 1885.

The adjourned term of the Chicot circuit court, at which the tract, N. 1/2 N.W. 1/4 22, was ordered to be sold, and at which the sale was confirmed, was held by a special judge and at the time it was held (25th September, 1882), the regular judge of that circuit was holding a regular term of the Bradley circuit court, i. e., on the 25th day of September, 1882, the day to which the Chicot circuit court had been adjourned by the regular judge on July 15, 1882.

More than five years had elapsed since the date of the sale of said lands before this suit was brought, and neither party was in the actual possession of said lands. The chancellor held that the decrees under which said sale took place were void, and that the deeds for the same to the defendant were void, but that the plaintiff was bound by the five years' statute of limitations. The plaintiff appealed.

Decree reversed.

W. B Streett, pro se.

The decree as to and sale of the 7.70 acre tract are void because:--

1. The description is too uncertain. Rorer, Jud. Sales, sec. 500; 50 Ark. 484; 59 id. 460; 56 id. 172.

2. There was an illegal levy of taxes. 32 Ark. 502; 48 id. 370. And a sale for illegal and excessive taxes. 32 Ark. 676; 33 id. 690; 37 id. 649.

3. The last sale of the N. 1/2 N.W. 1/4 section 22, was void for want of power in the special judge who presided. The proceedings were coram non judice, and void. 48 Ark. 227; 47 id. 323; 49 id. 336.

4. The statute of limitations of five years does not apply, unless the purchaser has possession. Rorer, Jud. Sales, p. 67, sec. 149; Ib. secs. 141, 488. This is not an action for the recovery of land. Sand. & H. Diff., sec. 4818; Cooley, Tax., p. 520; 31 Ark. 275. From a void sale the statute does not run unless actual possession is taken. 57 Ark. 527; 53 id. 404; 50 id. 390; 24 id. 392; 54 id. 641.

D. H. Reynolds, pro se.

1. The decree of confirmation was final, and cuts off all questions of irregularity, unless appealed from. 44 Ark. 273; 40 id. 35; 47 id. 323; 49 id. 326; 55 id. 37; 57 id. 423.

2. If we concede that the decree, made at the adjourned term, was void, still it was sufficient to put the statute of limitation in motion. 49 Ark. 248.

3. The decision in 48 Ark. 227 does not correctly interpret the law. See 115 N.Y. 185-9; 2 Cowen, 445; 49 Ark. 227; Mansf. Dig. secs. 1355, 1476, 1481; 34 Ark. 578; 39 id. 479; 32 id. 280; 39 id. 449; 24 Kas. 214.

OPINION

HUGHES, J., (after stating the facts)

All questions of irregularity merely in the assessment of these lands for taxation, and as to the amount of taxes assessed against them, and as to whether the taxes had been paid, etc., are conclusively presumed to have been litigated and settled when the decrees of condemnation were rendered, and these decrees cannot be attacked collaterally on the grounds of error in these respects, as they, if erroneous, might have been corrected upon appeal. Doyle v. Martin, 55 Ark. 37, 17 S.W. 346; Williamson v. Mimms, 49 Ark. 336, 5 S.W. 320; Jefferson Land Co. v. Grace, 57 Ark. 423, 21 S.W. 877.

The decree for the sale and the last decree confirming the sale of the 7.70 acre tract were made at a regular term of the Chicot circuit court, and these decrees are valid, and the sale of this tract carried the title.

AS this is not an action for the recovery of land, within the meaning of section 4818 of Sandels & Hill's Digest, the five years statute of limitations is not applicable to this case.

Besides the sale of this tract being valid, the legal title passes to the appellee by virtue of it, and, no one being in actual possession, the constructive possession follows the legal title, and the statute did not run. ...