Union Bank & Trust Co. v. Horne
| Citation | 113 S.W.2d 1091 |
| Decision Date | 24 January 1938 |
| Docket Number | No. 4-4906.,4-4906. |
| Parties | UNION BANK & TRUST CO. v. HORNE. |
| Court | Supreme Court of Arkansas |
A. J. Johnson, of Star City, for appellant.
T. S. Lovett, Jr., of Star City, for appellee.
The beginning of the matters under consideration upon this appeal was the suit filed on September 11, 1936, in conformity with the provisions of Act No. 119 of the Acts of 1935, p. 318, to confirm title to such land as had been forfeited to the State of Arkansas for the nonpayment of taxes. Notice of this proceeding was given according to section 3 of the said act, p. 319, and the proof of publication was filed December 11, 1936, and decree was rendered on April 5, 1937.
J. H. Fannin had been owner of lands involved in this controversy and the Union Bank & Trust Company held a mortgage upon the said lands which Fannin was unable to pay, and upon January 30, 1937, Fannin and his wife conveyed the land to the appellant. The appellant and Fannin have been in the actual possession of the said land during all the time that the proceedings were had and are continuing to hold possession thereof during the pendency of this litigation. The lands described are as follows: The southwest quarter of the northwest quarter; west half of southwest quarter; and southeast quarter of southwest quarter, all in section 11, township 9 south, range 7 west.
At the time that the decree was taken J. M. Horne, the appellee herein, was the holder of the tax title to the said property, and it is alleged that he and the appellant were attempting to negotiate some settlement. The lands were forfeited for the taxes of 1932, returned delinquent on the 10th day of May, 1933, and the delinquent list bore the collector's certificate that was sworn to and recorded in the office of the county clerk on the 10th day of May, 1933. The conveyance or certificate sent to the State Land Office is dated February 11, 1936, and Horne became purchaser of the land from the land commissioner in the year of 1936; the exact date is not shown and perhaps is immaterial. The certificate of the tax collector is set forth as having been duly made and sworn to, and notice is also written into the record by the county clerk of the fact that the sale would be made on the 12th day of June, 1933, but there appears to be no certificate made by the clerk before the land was sold, stating in what newspaper a list or advertisement had been published, nor the dates of publication or for what length of time same was published. The record of the land sold to the state and kept by the clerk for the year of 1933 contains a certificate of the fact that the lands had been duly advertised and sold on the second Monday in June, the same being the 12th day of the month, for said taxes, and this is followed by a certificate to the effect that the lands had been duly advertised in the Lincoln Ledger, a weekly newspaper on May 12, and that the lands had been sold on June 12 between the hours prescribed by law for judicial sales by the sheriff and collector of Lincoln county for the taxes, penalty, and cost and that no one bidding on same it was stricken off to the state. This certificate was made on June 12, the day of sale. The appellee relies upon the curative features or effect of Act No. 142 of the Acts of 1935, p. 402, to protect his title. A discussion of the conditions will be set forth in connection with the statement of the provisions of the curative statute. Section 1 of that provides that "whenever the State and County Taxes have not been paid upon any real or personal property within the time provided by law, and publication of the notice of the sale has been given under a valid and proper description, as provided by law, the sale of any real or personal property for the non-payment of said taxes shall not hereafter be set aside by any proceedings at law or in equity because of any irregularity, informality or omission by any officer in the assessment of said property, the levying of said taxes, the making of the assessor's or tax book, the making or filing of the delinquent list, the recording thereof, or the recording of the list and notice of sale or the certificate as to the publication of said notice of sale; provided, that this Act shall not apply to any suit now pending seeking to set aside any such sale, or to any suit brought within six months from the effective date of this Act for the purpose of setting aside any such sale."
Now in this case it is conceded that these lands were delinquent for the taxes and that there was a proper description of the lands, and we think it must be conceded that there was an advertisement of the lands and that this fact is ascertainable from the record, from two certificates of the clerk, the first showing the form of advertisement as it appeared from the record, and the second certificate, though made out of time and too late, to the effect that the lands had been advertised in the Lincoln Ledger.
These are the conditions under which and in accordance with which the powers of the curative statute take effect.
It is true as above stated the certificate of the clerk was not made on a day prior to the sale of the land. Had it been so made and had there been proper notice, there might not have been any irregularity or any informality upon which the curative provisions of Act No. 142 of the Acts of 1935 might seize and correct.
No testimony or evidence, except that furnished by the record, need be had to determine the essential features or acts had and done in compliance with the requirements of the aforesaid act in order that it might be effectual for the purposes intended. It comes within the provisions thereof as we determined in the case of Carle v. Gehl, 193 Ark. 1061, 104 S.W.2d 445. In order that there may be no misunderstanding, we will undertake to state in a different manner and somewhat by illustration the legal proposition here presented.
It is argued that there is a great array of authorities, decisions of this...
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