Thweatt v. Howard

• Decision Date: 17 November 1900
• Citation: 59 S.W. 764
• Parties: THWEATT et al. v. HOWARD et al.
• Court: Arkansas Supreme Court

59 S.W. 764

THWEATT et al. v. HOWARD et al.

Supreme Court of Arkansas.

November 17, 1900.

Appeal from circuit court, Prairie county, in chancery; James S. Thomas, Judge.

Action by one Thweatt and others against one Howard and others. From a judgment declaring a certain sum paid as taxes a lien on the lands, and ordering the lands sold to pay the same, plaintiffs appeal. Affirmed.

Rose, Hemingway & Rose, for appellants. Eugene Lankford, for appellees.

BATTLE, J.

Appellants brought this action in the Prairie circuit court to confirm the title to certain lands acquired under a sale thereof that was made for the purpose of collecting the taxes assessed against them for the year 1890, describing the lands in their petition, and alleging that they had been purchased at the tax sale by the Hammett Grocer Company, which had sold to George C. Cooper, who had sold to petitioners, the appellants. Appellees answered the petition of the appellants, and claimed a part of the lands purchased at the tax sale, and traced their title to the same through various persons to the state of Arkansas; the purchases from the state by the persons through whom they claim title being made in 1862. They also alleged that the lands in controversy were not advertised to be sold for the taxes of 1890, by weekly publications in a newspaper, for two weeks between the second Mondays in May and June, 1891, as required by law, and that the sale of the lands for such taxes was consequently void. The appellants replied to the answer and alleged that the purchases from the state or entries through which the appellees claim title were illegal and fraudulent; that the parties claiming under said purchases failed to comply with an act entitled "An act to define the condition of certain state lands, and for other purposes," approved March 23, 1871; that the said purchases or entries by reason of such failure became void on the 31st day of March, 1872; and that on the 1st day of April, 1872, D. C. Duell entered the lands in controversy in the land office of the state, and received a certificate of purchase, which he afterwards assigned to B. D. Williams, to whom the state of Arkansas issued a patent therefor; and that Williams afterwards conveyed the lands to the Hammett Grocer Company, which conveyed them to George C. Cooper, who conveyed to appellants.

Evidence was adduced at the hearing of this cause tending to prove that the lands in controversy were purchased by various persons from the state of Arkansas in the year 1862, and were conveyed by them to other persons, and by them and others, through deeds and a will, to the appellees; that D. C. Duell entered these lands, as swamp lands, in the land office of the state, on the 1st day of April, 1872, and received a certificate of purchase, and afterwards assigned it to B. D. Williams, to whom the state of Arkansas issued a patent; that Williams afterwards conveyed the lands to the Hammett Grocer Company, and it conveyed them to George C. Cooper, and he conveyed to appellants. Evidence was also adduced for the purpose of showing that the lands were never occupied by the persons who entered them in 1862, and that there were no ditches on them in 1862, 1865, and 1866, and in those years there were no indications that any ditches had been made on them; and it was proved that the list of lands returned delinquent on account of the nonpayment of the taxes of 1890, of which the lands in controversy were a part, was not published weekly for two weeks between the second Monday in May and the second Monday in June, and was published only 11 days.

The circuit court did not decide whether the appellees had a valid claim, but found that the sale of the lands for the taxes of 1890, which appellants asked the court to confirm, was void, and refused to confirm the same as to the lands in controversy because only 11 days' notice of the sale was given, and, finding that the petitioners and their grantors paid a certain sum as taxes, interest, and costs, for which the lands were chargeable, declared it a lien upon them, and ordered the lands sold to pay the same. No order was made as to the lands which were not in controversy. Petitioners appealed.

The list of lands returned delinquent on account of the nonpayment of the taxes of 1890, of which the lands in question were a part, was not published in the manner prescribed by law. This rendered the sale which the appellants asked the court to confirm null and void. Pennell v. Monroe, 30 Ark. 661; Townsend v. Martin, 55 Ark. 192; Martin v. McDiarmid, 55 Ark. 213, 17 S. W. 877.

Should the sale have been confirmed notwithstanding its nullity? In speaking of what shall be done in the hearing of a petition for confirmation of sales, the statutes say: "On the trial of the cause the petitioner shall exhibit to the court the tax receipts showing the payment of the taxes for at least three successive years and the deed or deeds under which he claims title, or the record thereof or a...