Tyer v. Hazel

• Decision Date: 27 October 1947
• Docket Number: 4-8277
• Citation: 205 S.W.2d 18,212 Ark. 140
• Parties: Tyer v. Hazel
• Court: Arkansas Supreme Court

205 S.W.2d 18

212 Ark. 140

Tyer v. Hazel

No. 4-8277

Supreme Court of Arkansas

October 27, 1947

Appeal from Cross Chancery Court; A. L. Hutchins, Chancellor.

Affirmed.

Giles Dearing, for appellant.

J L. Shaver, for appellee.

OPINION

Minor W. Millwee, Justice.

Appellees were the owners of the west half (W1/2) of section 2, and the north half (N1/2) of section 11, in township 6 north, range 1 east, Cross county, Arkansas, in 1942 when said lands became delinquent for the 1941 state and county taxes. The lands were sold and certified to the state and on January 8, 1945, the State Land Commissioner conveyed the north half of section 11 to appellant, Dave Tyer, and the west half of section 2 to appellant, Malcolm Smith. The State of Arkansas instituted confirmation proceedings in the Cross Chancery Court and a decree was rendered May 28, 1945, confirming the state's title to the aforesaid lands.

On July 20, 1945, appellees intervened in the confirmation suit of the state and attacked the validity of the 1942 tax sale and the confirmation decree based thereon. An amendment to the intervention was filed on April 17, 1946. Appellees alleged that the tax sale was void and prayed that the confirmation decree and tax deeds to appellants be set aside and canceled, and that appellees be permitted to redeem the lands from the tax sale and have their title thereto quieted and confirmed.

Appellants filed a response to the intervention in which they alleged ownership of the lands by virtue of their respective deeds from the State Land Commissioner. The cause was submitted to the trial court upon the pleadings, stipulations and testimony of several witnesses. A decree was rendered declaring the tax sale void and the confirmation decree and tax deeds to appellants were set aside and canceled. Appellees were also granted the right to redeem said lands by payment of the amount of taxes, penalty and costs as provided by law.

Having intervened in the confirmation proceedings within one year after rendition of the confirmation decree, appellees may, under the provisions of Act 423 of 1941, attack the decree and tax sale upon any ground which would have constituted a meritorious defense to the complaint upon which the decree was rendered. Appellees attacked the validity of the 1942 tax sale upon 14 separate grounds and proof was offered upon several of these. Since we hold that the invalidity of the tax sale was established under the fourth ground urged in appellee's amendment to the intervention, we find it unnecessary to set out or discuss the other grounds relied upon. This alleged defect is: "4. That the Quorum Court of Cross county failed to levy any school taxes for the year 1941 against the property involved in this suit."

Appellees introduced the record of the proceedings of the Quorum Court showing the levying of the taxes for 1941. This record reflects that court was opened on November 17, 1941, with the county judge, county clerk and sheriff present. The record further recites the presence of a majority of the justices of the peace of Cross county, "making the following levy of the assessments, valuations of the real and personal property for the said county for the year 1941." Paragraph No. 3 of the proceedings immediately following contains an entry relative to the levy of school taxes as follows: "On motion of C. T. Stuart and seconded by G. D. Bowers, that the levy voted by the various school districts of Cross county for the year 1941 be confirmed, and was unanimously carried." The foregoing constitutes the record of the court relative to the levying of school taxes.

Under § 2527 of Pope's Digest, the Quorum Court is charged with the duty of levying the county, municipal and school taxes for the current year after all appropriations have been made. In the case of Alexander v. Capps, 100 Ark. 488, 140 S.W. 722, it was contended that a five-mill tax had been levied by the Quorum Court for school purposes, and the court said: "If the school tax of 5 mills had been levied, that fact could only be shown by the record. As was said by this court in Hodgkin v. Fry, 33 Ark. 716-721, quoting from the Supreme Court of Michigan: 'Every essential proceeding in the course of the levy of taxes must appear in some written and permanent form in the record of the bodies authorized to act upon them.' Moser v. White, 29 Mich. 59. See, also, Taylor v. State, 65 Ark. 595, 47 S.W. 1065; Logan v. Eastern Land Co., 68 Ark. 248, 57 S.W. 798; Martin v. Barbour, 140 U.S. 634, 11 S.Ct. 944, 35 L.Ed. 546."

The record in Alexander v. Capps supra, failed to show a vote was taken by the levying court. While the record of the Quorum Court in the instant case shows a vote was taken and the motion passed unanimously, there is no way to determine, from...