Townsend v. Martin

• Citation: 17 S.W. 875,55 Ark. 192
• Parties: TOWNSEND v. MARTIN
• Decision Date: 05 December 1891
• Court: Supreme Court of Arkansas

17 S.W. 875

55 Ark. 192

TOWNSEND v. MARTIN

Supreme Court of Arkansas

December 5, 1891

APPEAL from Faulkner Circuit Court, JOSEPH W. MARTIN, Judge.

In January, 1889, Martin brought ejectment against Townsend and others for the possession of various tracts of land including the land involved in this appeal, which he claimed under a deed of the commissioner of state lands based upon a forfeiture to the State for the non-payment of the taxes of 1884. It was proved that, in advertising the lands delinquent for that year, two insertions of the notice of sale were made in the newspaper, on the 14th and 21st of May, 1885 respectively; and that the sale was on the 25th day of May of the same year, the first insertion being less than two weeks from the day of sale. Judgment was for plaintiff.

Judgment reversed and cause remanded.

Sam Frauenthal for appellants.

1. The failure to advertise the tax sale for the time prescribed by law is fatal. Mansf. Dig., sec. 5762; Acts, 1885, p. 45, sec. 3. Two weeks are fourteen days. 30 Ark. 661. When the notice is for less than the statutory time, it is fatal to the sale. Cooley on Taxation (2d ed.), 484; 16 How., 610; 54 Md. 454; 30 Kas., 199; 1 Blackwell on Tax Titles, secs. 430, 440; 34 F. 701; 42 Ark. 77.

2. This defect is not cured by sec. 5782, Mansf. Dig. That section only applies to deeds executed by the county clerk. The only section referring to the character of title in this case is sec. 5784. But if sec. 5782 applies, it only makes the deed prima facie evidence. 32 Ark. 141; 15 id., 331; ib., 363; 21 id., 378; 29 id., 489; 31 id., 491; 33 id., 478; 35 id., 305. This court in 46 Ark. 96, only reaffirmed the construction given in the cases cited supra. Under this and previous decisions it is held: "No exception can be taken to a deed except such as shall apply to the real merits of the case. 13 Ark. 242; 21 id., 580.

3. Section 5791 cannot be held to cure fatal defects. 2 Black., Tax Titles, sec. 950; Cooley, Tax. (2d ed.), 306; 129 Mass. 559; 20 Blatch., 341; 31 N.W. 271; 54 Md. 454; 14 Ill. 223; 74 Ill. 384.

4. In 34 F. 701, this precise question was passed upon, and it was held that a failure to advertise for the full time was a meritorious defense.

Ratcliffe & Fletcher for appellee.

There are authorities which hold that the failure to advertise the full number of days required by the statute invalidates the sale; but none of them have reference to a statute like ours. If sections 5782, 5791, be constitutional, this objection becomes a mere irregularity, which is cured by failure to assert it within two years from date of sale. Cooley on Tax. (2d ed.), 306, refers only to retrospective statutes. See upon these statutes, 17 Wis. 591; 53 Ill. 483; Cooley, Tax. (2d ed.), 310, note. All constitutional and substantial rights are secured to the property owner when he is permitted to show "that he owed no tax; that his land was not taxable; that he had paid what was due, or that he had redeemed his land after sale." All these rights and more are reserved by our statute. 42 Ark. 77, is not out of harmony with this proposition.

OPINION

COCKRILL, C. J.

Martin brought this action of ejectment against Townsend for the possession of a tract of land in Faulkner county, basing his claim of title upon a land commissioner's deed to lands forfeited to the State for the nonpayment of taxes. The trial resulted in a judgment for Martin.

The notice for the sale upon which the forfeiture to the State is based was not published for the full time prescribed by the statute by three days. It is conceded that that fact is established by the record. The previous decisions of this court upon the subject of tax titles are uniform to the effect that failure on the part of an officer engaged in the proceedings devised for raising the revenue to observe a requirement of the statute, the non-observance of which tends to deprive the land owner of a substantial right, will avoid the deed. The rule was clearly formulated by Judge Scott in Patrick v. Davis, 15 Ark. 363. It had been enforced in previous cases, and has been steadily adhered to since. Notice of the intended sale is of the first importance to the owner, for the reasons assigned in Patrick v. Davis, 15 Ark. 363, supra, and in Thweatt v. Black, 30 Ark. 732. The failure therefore to give notice in the manner or for the length of time prescribed by statute is prejudicial to the owner's interest and will avoid the sale. Cases supra; Cooley, Tax., 484.

Counsel for Martin concede that the application of the rule which has governed previous cases will defeat his title, but they contend that the legislature has established a different rule which cuts off all defenses except such as go to the foundation of the power to sell. The provisions of the statute relied upon are two sections from the revenue act of 1883, Mansf. Dig., secs. 5782 and 5791. The act provides that when lands are struck off to an individual at tax sale, the collector shall deliver to him a certificate of purchase (Mans. Dig., 5770); and if the lands are not redeemed at the end of two years, the clerk of the county court is required, upon the surrender of the certificate of purchase, to execute to him a deed in the form prescribed by section 5780 of Mansfield's Digest.

Section 5782--the first of those relied upon by the appellee--provides that no one who attacks a title claimed "under or by virtue of a deed executed substantially as aforesaid" (that is, as in secs. 5780-1) "by the clerk of the county court" shall be allowed to prove any defect in the tax proceedings except such as is set forth in that section--the one here found to exist not being among them.

When the State becomes the purchaser, the clerk is required to record the fact in a book kept for that purpose; and when the time for redemption has expired, the following provision governs, viz.: "The clerk shall make out a certificate of sale to the State for all lands purchased by the State, as shown by the records of such tax sale in his office, which have not been redeemed, and state therein the amount of the taxes, penalty and costs thereon, and cause the same to be recorded in the recorder's office of the county, and thereupon the title to all lands embraced in such certificate shall vest in the State, and the clerk shall immediately transmit such certificate to the commissioner of state lands, and thereupon such lands shall be subject to disposal, as other forfeited lands shall be." Mansf. Dig., sec. 5784. The provisions governing the deed executed by the land commissioner to a purchaser from the State are found in section 4246 of the same digest. There is no provision in the statute expressly attempting to cut off any meritorious defense that may exist against a title claimed under a land commissioner's deed. Scott v. Mills, 49 Ark. 266.

But it is argued that the certificate of sale executed by the clerk to the State is exactly equivalent to the deed executed by him to the purchaser, and that therefore section 5782 should be held to apply to it.

The certificate of sale was certainly intended as the State's evidence of title, and to that extent operates as a deed would, notwithstanding it contains no granting clause or words of conveyance. It was competent for the legislature, if it had seen fit--notwithstanding the difference in form and of nomenclature--to give to the clerk's certificate of sale whatever conclusive effect it could give to the clerk's deed. But the question is, has it done it? By the express terms of the section relied upon, the limitation upon the right to defeat a tax title is confined to a title claimed under a deed executed by the clerk in substantial compliance with the provision of the act governing the execution of such deeds, and it is silent as to the effect of a certificate, except that it is declared that the certificate shall operate as a conveyance.

In South Carolina, the statute required the county auditor (who stands for our county clerk in this case) to execute a deed to the individual purchaser and a certificate to the State as our statute does. The statute declared also that the deed executed by the clerk should be prima facie evidence of the title, but was silent as to the certificate of sale executed to the State. In disposing of the question whether the State's certificate was also prima facie evidence of title, the Supreme Court of South Carolina used the following language which is appropriate to this case: "The General Assembly in its wisdom saw proper to make the deed of the auditor prima facie evidence of title as to delinquent lands sold by him in express terms as found in the one hundred and sixteenth section of the act of 18...