Wallace v. Hill

• Decision Date: 20 May 1918
• Docket Number: 372
• Parties: WALLACE v. HILL
• Court: Arkansas Supreme Court

205 S.W. 699

135 Ark. 353

WALLACE v. HILL

No. 372

Supreme Court of Arkansas

May 20, 1918

Appeal from Benton Chancery Court; Ben F. McMahan, Chancellor affirmed.

STATEMENT OF FACTS.

Appellant brought three separate actions in the Benton Circuit Court one against E. C. Hill; one against G. W. Wilmoth; one against A. P. Ash. Appellant alleged that he was the owner of the particular tract of land, described in each of his complaints, and that each of the defendants named in the respective complaints was in the wrongful possession of the land described. Appellant in each complaint alleged that he was the owner by virtue of a deed executed for valuable consideration by the Commissioner of State Lands, on the 21st of March, 1916; that the lands thus deeded to appellant by the commissioner were forfeited for taxes and sold to the State on the 1st of February, 1882, under an overdue tax decree rendered by the Benton Chancery Court. That the commissioner appointed to execute the decree of the Benton Chancery Court did so according to law and made his report to that court which was duly confirmed and executed a deed to the State which was approved by that court. Appellant exhibited with his complaint a deed from the State Land Commissioner for the land described in the respective complaints, and in response to a motion from defendants in each of the respective cases he exhibited as muniments of title the decree of the Benton Chancery Court under which the lands were sold and the report of the commissioner and the order of the court showing the approval and confirmation thereof.

The respective defendants in each of the separate suits answered denying all material allegations of the complaint and set up title in themselves to the lands claimed by plaintiff, and exhibited with their answers their muniments deraigning title through various mesne conveyances from the United States Government. Each alleged that he and those under whom he claimed had been in possession more than thirty years. Answers of each of the defendants also set up exceptions to the deed of the State Land Commissioner, and to the decree of the Benton Chancery Court, and the report of the commissioner which it is unnecessary, in view of the conclusion we have reached, to set forth here at length. We will refer to such of these as we deem necessary in the opinion.

Each of the answers was made a cross-complaint in the respective suits and set up a claim for improvements made by each of the respective defendants. They alleged that the taxes had been paid, and that the owners held receipts from the collector showing that same had been paid; and that there were no taxes due on the land at the time the suit for the overdue taxes was filed; and that the returning of said lands as delinquent for certain years was by mistake of the county clerk. They alleged that the decree of the Benton Chancery Court declaring the land forfeited for the non-payment of taxes was void and a cloud upon their title, and prayed that the same be canceled.

The appellant here, plaintiff below, in each of those suits filed a general demurrer to the answer and cross-complaint and also a reply denying the allegations and also exceptions to each of the defendant's muniments of title. In the reply plaintiff alleged that the matters and things set forth by the respective defendants in defense of plaintiff's claim were passed upon and settled against them in the overdue tax decree of the Benton Chancery Court above mentioned, from which there was no appeal, and that said decree was res judicata on the issues that the defendants attempted to raise in this case, and that their alleged defense was but a collateral attack on that decree.

Each cause on motion of the defendant therein was transferred to the chancery court. In that court each defendant was permitted, over the objection of the plaintiff, to amend his answer in which it was set up that officers of the State, the assessor, and the clerk of the county, caused said lands to be placed on the tax books for the years 1882 and 1883, and every year subsequent to the sale under the decree in the overdue tax suit, and that all taxes since said date have been duly paid; that State, county, school and road districts have received all taxes due on said lands which in equity is an abandonment of all rights of the State under and by virtue of the decree of the sale in overdue tax suits.

The undisputed evidence on behalf of the appellant proved that the lands in controversy were embraced in the overdue tax decree rendered by the Benton Chancery Court at its fall term, 1881, against certain lands in Benton County, and the report of the sale by the commissioner of those lands under the decree of the court, which report was duly approved and confirmed, shows that the lands were stricken off to the State. The appellant also introduced in evidence deed from the State Land Commissioner, conveying to appellant the lands in controversy, reciting that the lands were forfeited to the State for non-payment of the taxes and appeared on the records in the office of the State Land Commissioner as vacant and subject to sale and that Lewis Wallace applied to purchase the same and paid into the treasury the sum of $ 50 the amount required to purchase the same under sections 4802 and 4803, Kirby's Digest; that the commissioner, by virtue of an act authorizing him to make deeds in certain cases, granted, bargained, conveyed, et cetera, all the right, title, and interest of the State to the land describing it. This deed was executed on the 21st of March 1916, and was filed for record in Benton County on the 27th of March, 1916.

Appellant introduced the deposition of W. F. Etman, who was the receiver of the U.S. Land Office at Harrison, Ark., and had in his custody the records of the original entries of lands in Benton County, Ark. These records show that the final certificate of entry of the lands in controversy had been issued before the filing of the suit for overdue taxes against these lands.

The testimony of Etman and the testimony of the county clerk of Benton County and the tax books and the muniments of title of the appellees show conclusively that the lands in controversy were listed, and were subject to taxation for the years the overdue tax suit was brought against them under which they were sold.

The testimony in the case of appellant against appellee Ash showed that the taxes had been paid by Ash and his predecessors in title on the land in controversy in that case every year since 1878. In the case of appellant against appellee Hill the testimony showed the taxes had been paid continuously since 1868, and in the case of appellant against appellee Wilmoth it was proved that the taxes had been paid continuously since 1872. In the latter case Wilmoth testified that he had been in possession of the land about fifteen years and had placed improvements on it which he valued at over $ 900.

The court rendered a decree in each case in favor of the defendant, dismissing plaintiff's complaint for want of equity. From the decree in each case an appeal was taken. Because of the precise similarity of the issues involved in these three cases, the same have been consolidated here for the purpose of briefing and will be disposed of under one opinion. Other facts stated in the opinion.

Decrees affirmed.

W. T. Selby and J. G. Wallace & Son, for appellant.

1. These lands became subject to taxation when the final certificates were issued under the U. S. Homestead Act. 55 Ark. 398. This was long prior to the overdue tax suit. They were included in the overdue tax decree and sold, and the confirmation under that decree puts at rest all questions not affecting the jurisdiction of the court. 50 Ark. 188. That decree can not be attacked collaterally except for jurisdictional defects. 49 Ark. 336; 91 Id. 95. See also 55 Id. 30; 66 Id. 44, 398, 539; 53 Id. 445; 45 Id. 530; 57 Id. 423; 108 Id. 515.

2. The court had jurisdiction under Act. No. 39, Acts 1881. The court found that taxes were overdue and ordered the lands sold. They were sold and the report of the sale confirmed. That decree can not be attacked collaterally as the court had jurisdiction. Cases supra. The record discloses that due notice was given by publication in the "Weekly Advance" as required by law. All presumptions are in favor of the jurisdiction of the court. Overdue Tax Act, § 18, etc.; 50 Ark. 188, etc.

3. Appellant has prima facie title to the lands. Kirby's Digest, § 4807; 50 Ark. 190; 49 Id. 266; Ib. 336; 53 Id. 430. This prima facie presumption will stand until overthrown by a preponderance of the evidence. The policy of the law is to uphold overdue tax titles when the sale is regular as here.

4. The Betterment Act does not apply. 59 Ark. 474; 95 Id. 70; 10 Id. 460; 14 Id. 290; 23 Id. 19.

Duty & Duty and W. S. Floyd, for appellees.

1. The "Overdue Tax Act" was a special statute conferring special jurisdiction and there is no presumption in favor of the regularity of the proceedings, and the record itself must show jurisdiction as nothing is taken by intendment. Waples, Proceedings in Rem, § 89, p. 126; 2 Wall, 313; 8 How. 495; Ib. 336; 103 Ark. 446; 59 Id. 483; 123 Id. 189.

2. No notice was given as prescribed by the act. §§ 2, 3 etc.; 65 Ark. 90; Mansf. Dig., §§ 4356, 4359; 72 Ark. 101. Only two insertions were published in the "Advance" and not for thirty days as required by law. The court had no jurisdiction. 97 U.S. 444; 117 Id. 255; 57 Ark. 49; 56 Id. 1. The jurisdictional facts must appear of record. No presumptions are indulged. 55 Ark. 30; 105 U.S. 404; 74 S.W. 13; 48 Ark. 238; 18 Wall, 350; 51 Ark. 51. All of the proceedings here show want of jurisdiction. No notice. No entry of...