United States v. Williams
| Decision Date | 04 September 1952 |
| Docket Number | Civ. A. No. 822. |
| Citation | 109 F. Supp. 456 |
| Parties | UNITED STATES v. WILLIAMS et al. |
| Court | U.S. District Court — Western District of Arkansas |
Gutensohn & Ragon, Fort Smith, Ark., for plaintiff.
Hugh M. Bland, Sp. Asst. to U. S. Atty. and R. S. Wilson, U. S. Atty., Fort Smith, Ark., for United States.
There is before the Court a petition filed by Mrs. Myrtle Oliver (Mrs. O. M. Oliver) and Jean Oliver, the minor daughter of Mrs. Myrtle Oliver and O. M. Oliver, seeking to set aside a decree quieting and confirming the title of the United States of America in 134.5 acres of land in Crawford County, Arkansas, designated as Tract No. 69. The petition or motion was filed by an attorney other than the attorney who appeared at the trial for the petitioner and at the hearing many of the allegations in the petition were abandoned. Upon examination of the petition, and in view of the provisions of Rule 60(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., it appeared to the Court that the facts should be determined before action was taken on the petition, and in an effort to ascertain the facts in the controversy between petitioner, Mrs. Myrtle Oliver, and the United States, the Court directed that a full hearing or trial on the merits be had and this has been done. After considering the ore tenus testimony of the witnesses, the exhibits to their testimony and stipulations of the parties, the Court now makes and files its findings of fact and conclusions of law, separately stated.
On April 18, 1918, O. M. Oliver acquired title to the land involved herein for a consideration of $1,200. The deed to Oliver correctly described the land and was recorded on April 5, 1919, and is now of record in deed record book 95 at page 236 of the records of Crawford County, Arkansas.
O. M. Oliver and wife, Mrs. Myrtle Oliver, the petitioner, immediately went into actual possession of the land following the purchase thereof, and the said O. M. Oliver continued to live on the land with his family until the year 1939 when he abandoned his wife, children and farm, leaving his wife, the petitioner, and the children in possession of the farm.
For the year 1929 the land appeared on the assessment and tax records as follows:
O. M. Oliver, SW NE, Sec. 20, T 11
N, R 31 W, 40 acres, value of
$100, tax ...................... $3.39
O. M. Oliver, S½ NW, Sec. 20, T 11
N, R 31 W, 80 acres, value of
$250, tax ...................... $8.47
O. M. Oliver, Pt N½ SW, Sec. 20, T
11 N, R 31 W, 14.5 acres, value
of $50, tax ................... $1.69
The taxes were not paid, and on June 9, 1930, the land was sold to the State of Arkansas for the nonpayment of the taxes. Not having been redeemed within two years following the sale or forfeiture, the land was certified to the State of Arkansas on July 5, 1932, by the County Clerk of Crawford County, Arkansas.
Prior to the date of the sale of the land for the nonpayment of taxes a penalty of 34 cents and costs of 85 cents were added to the tax on the 40 acre tract so that the total amount for which the 40 acre tract was sold was $4.58. On the 80 acre tract a penalty of 85 cents and costs of 85 cents were added so that the total amount for which the tract was sold was $10.17. On the 14.5 acre tract a penalty of 17 cents and costs of 85 cents were added, making the total amount of $2.71 for which the tract was sold.
At the trial it was agreed by the attorney for the government and the attorney for the petitioner that Honorable Claude A. Rankin, Commissioner of State Lands, had certified that the maximum costs per tract on land sold for nonpayment of taxes during the years 1929, 1930 and 1931 were 80 cents per tract, and that the maximum penalty was 10% of the taxes.
Thus the costs charged against each tract and for which each tract was sold exceeded by 5 cents the maximum costs.
On October 9, 1935, the Commissioner of State Lands executed his deed to the United States of America under the authority of Sections 10-1112 and 10-1113, Arkansas Statutes 1947, Annotated. This deed was recorded on November 30, 1935, and is now of record in deed record book 142 at page 43 of the deed records of Crawford County, Arkansas. In the deed the lands were described as follows:
"Parts Of Section Section Twp Range Acres
SW¼ NE¼, S½ NW¼ | 120
> 20 11N 31W
Pt. N½ SW¼ | 14.5"
As will be observed from a reading of the statute under which the deed was executed, the United States paid no money to the State of Arkansas for the land.
The United States never took actual possession of the land and the petitioner, Mrs. Oliver, and her children continued to live on the land until March 12, 1948, when the home was destroyed by fire and the family was compelled to leave the land since they were unable to rebuild the dwelling. However, Mrs. Oliver and her children continued to use the land as well as the barn and other buildings on said land. Approximately 40 acres of the land is under fence. Some of the cleared land is bottom land and suitable for row crops. The other land under fence is used for the production of hay, and the petitioner, Mrs. Oliver, and her children, notwithstanding the destruction of the dwelling, have continued to use the land, keep the fences and other improvements thereon in repair, and to exercise every right of ownership in the entire 134.5 acres.
The only attention that has been given to the land by the United States is the same as is given to other land in the area for the purpose of protecting the forest from fire.
On February 25, 1949, the United States filed its petition under Sections 34-1901 to 34-1910, both inclusive, Arkansas Statutes 1947, Annotated, praying that its title to certain tracts of land therein described be quieted and confirmed.
The sale of the land to the state for the nonpayment of taxes was not confirmed under Act 119 of the Acts of 1935 of the General Assembly of Arkansas, as amended.
The land involved here was described as follows:
Summons was issued on the petition and served on Mrs. Myrtle Oliver on May 4, 1949. At the time the summons was served on Mrs. Oliver, she employed Mr. Harold C. Rains of Van Buren, Arkansas, to represent her. Her attorney advised her that he would answer the petition of the United States and would otherwise represent her interests. At all times since then Mrs. Oliver has attempted to defend the action brought by the government, but necessarily had to rely upon her then attorney to represent her interests. She finally learned that a decree confirming the title in the government had been entered and she talked to Honorable R. S. Wilson, United States Attorney, about her rights. The United States Attorney did not in anywise mislead Mrs. Oliver, and she returned to the office of her attorney in Van Buren and was told by him that he desired that she remain away from the Federal Court and that he would look after her interests. He did not do so, and as a result the decree of the court stood unchallenged until the present petition to set the decree aside was filed on June 19, 1952, by Harold C. Rains, Jr., the son of Harold C. Rains. After the petition to set aside the decree was filed, Mrs. Oliver employed her present attorney who has and is now representing her.
The default decree was rendered on August 29, 1949, and the land involved herein was described as it was in the petition and as hereinbefore set forth.
On January 9, 1950, upon an ex parte petition, the decree was modified so as to correct the description of Tract No. 69 to read as follows:
"SW¼ NE¼; S½ NW¼; and 14.5 acres out of N½ SW¼ being a strip of land 14.5 rods wide along the entire north side of said SW¼; containing 134.5 acres, more or less, in Section 20, Township 11 North, Range 31 West, Crawford County, Arkansas."
Prior and subsequent to the entry of the decree the representatives of the government apparently recognized that the title of the government to the land in question was defective and continued to discuss the matter with Mrs. Oliver and her then attorney, Mr. Harold C. Rains.
On May 29, 1937, O. M. Oliver and his wife, Myrtle Oliver, executed an option for the purchase of the land by the United States by the terms of which the United States agreed to pay O. M. Oliver and Mrs. Myrtle Oliver $8.67 per acre. This option was not exercised by the United States within six months from the date thereof.
On March 24, 1948, after O. M. Oliver had abandoned his wife and left her and the children in possession of the land, Mrs. Oliver executed another option to the United States whereby she agreed to sell the land to the United States for the sum of $5 per acre, which option provided that all buildings and fences were reserved "* * * in Myrtle Oliver for six months after title is vested in the United States."
On April 5, 1948, Mrs. Oliver wrote Mr. Paul H. Gerrard, Forest Supervisor of the United States, advising that she would not accept the sum of $5 per acre as set forth in the option, and on April 8, 1948, Mr. Gerrard replied to that letter as follows:
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