Whipple v. Tuxworth

• Decision Date: 07 January 1907
• Parties: WHIPPLE v. TUXWORTH
• Court: Arkansas Supreme Court

99 S.W. 86

81 Ark. 391

WHIPPLE v. TUXWORTH

Supreme Court of Arkansas

January 7, 1907

Appeal from Pulaski Chancery Court; Jesse C. Hart, Chancellor reversed.

Reversed and remanded.

William G. Whipple, for appellant

The suit by the board of improvement to sell the land for unpaid taxes was one in rem. 50 Ark. 188; 55 Id. 398. The Code provisions as to persons constructively summoned do not apply in a suit against land for taxes. 57 Ark. 49. When the jurisdiction of a court of general jurisdiction depends upon facts not appearing upon the record, they will be presumed in a collateral proceding. 64 Ark. 464. A court of general jurisdiction is presumed to have had jurisdiction of the parties as well as the subject-matter. 12 Ia. 204; 39 Id. 539. Where taxes are sought to be collected against land, notice by publication is sufficient to bind all owners, because the proceeding is in rem. 193 U.S. 92. The decree of such a court that it had jurisdiction of the person can not be inquired into except upon appeal. 11 Ark. 519.

Judgments by default are as effective and binding as though rendered after the trial of the issues. Freeman on Judgments, secs 330 and 532. A judgment in rem binds only the property within the control of the court which renders it. 139 U.S. 156; 34 Ark. 291; 57 Id. 97; Id. 227; 50 Id. 551; 71 Id. 599; 60 Id. 369. Complainant can not go into evidence at large to establish error in the decree. 13 Pet. 6. One losing a suit by his own neglect can not be aided by bill of review. 1 S.C. 232. Inadequacy of price cuts no figure in tax sale. Cooley on Taxation, p. 345.

John B Jones, E. B. Kinsworthy and G. D. Henderson, for appellee.

Want of jurisdiction can always be set up against a judgment when sought to be enforced. 48 Ark. 156. If land has been actually sold and conveyed for a tax, the original owner remaining in possession may have the validity tested by a bill in equity filed for the purpose of quieting his title. Cooley on Taxation, vol. 2, 1457. A void judgment or decree is a mere nullity, and has no force either as evidence or by way of estoppel. 60 Ark. 369.

OPINION

BATTLE, J.

Frank Tuxworth filed a complaint against Durand Whipple, in the Pulaski Chancery Court, on the 13th day of September, 1904. He alleged in his complaint that he was the owner of lot No. 14 in block No. 17 in Fleming & Bradford's Addition, in the city of Little Rock; that it is vacant and unimproved; that he was a non-resident of this State; that suit was brought in the Pulaski Chancery Court in July, 1902, by the alleged Improvement District No. 60 against the unknown owners of the lot for assessment charges against the same for the years 1899, 1900 and 1901, amounting in the aggregate to $ 9.72; that plaintiff was not served with process, and had no knowledge of the suit until April, 1904; that there was no Improvement District No. 60, but attorneys for the so-called district falsely represented to the court that there was such a district, and that the assessments were due, and on these representations the court, on the first of October, 1902, rendered a decree, ordering the lot to be sold; that the suit in which this decree was rendered was numbered 7752; that on the 3d day of November, 1902, the lot was sold by a commissioner of the court to the defendant for the assessments and costs; that on the 15th day of January, 1904, the commissioner executed a deed to the defendant. He asked that the decree, sale, and deed be set aside and declared void.

Afterwards plaintiff filed an amendment to his complaint. in which he stated there was no such district as Improvement District No. 60; that ten resident owners of property within the boundaries of the alleged district never signed a petition to the city council of Little Rock to take steps towards making the improvement district according to section 5665 of Kirby's Digest, and the city council had no jurisdiction to pass an ordinance establishing such district. That the ordinance, the acts of the persons named as commissioners, and the assessments were void and of no effect. That the decree rendered by the court was void for four reasons:

"(1). There was no such plaintiff in existence as Improvement District No. 60 at the time of the commencement of said cause No. 7752; that, there being no plaintiff, there was no cause of action before the court to be adjudged, and that the complaint filed in said cause was not a pleading in any cause in said court for adjudication; and the court had no power to take any steps to adjudicate such cause.

"(2). The court had no jurisdiction over the subject-matter of said complaint for the reason said lot was not situated within any improvement district; that the court by law had authority only to decree sale of land situated within an improvement district to satisfy assessments for improvement of property.

"(3). That plaintiff was not a party to said cause No 7752, and had no notice of said cause or pretended decree until April, 1904; that the allegations that the owner of said property was unknown were untrue; that the parties pretending to be commissioners had notice of facts from which they could easily have found plaintiff was the owner.

"(4). That the decree and sale of said lot without jurisdiction in the court to render the same in cause No. 7752 deprived plaintiff of the property without due process of law, contrary to the Fourteenth Amendment to the Constitution of the United States, and the decree and sale are therefore void."

The defendant answered, and stated that the plaintiff did not pay the assessments on the lot in controversy for the years 1899, 1900 and 1901; and that Improvement District No. 60 has always been a de facto improvement district from the date of its organization in May, 1892, and that it was recognized by the plaintiff and predecessors in title by the repeated payment from year to year of assessments levied on said lot by the board of improvement of said district; that in the case of the board of improvement of said district against the unknown owners of lot 12, 13 and 14, block 8, in said district, this court rendered a decree on December 26, 1893, sustaining the legality of the organization of said district, although in that case its legality was vigorously contested; that since said adjudication some three hundred suits have been brought in this court (chancery) by said board of improvement of said district against delinquent owners of lots in said district, and successfully maintained; that a large amount has been expended by said board in said district in improving the streets and building bridges therein; that the allegations made in said complaint in suit No. 7752 were neither false nor fraudulent, and defendant alleges that the statements therein made are true; that said lot 14, block 17, in said Fleming & Bradford's Addition in said district was delinquent for the assessments for the years 1899, 1900 and 1901, for the amounts set forth in said complain, and that the said lot is within the boundaries of said district; that the statements made in said complaint to the effect that no notice was served upon the unknown owners of said lot in said suit are untrue; that the said owners were duly and fully notified as required by law, in every particular, of the bringing of said suit; that the process was regular, and that the said complaint contained the averment that the owners of said lot were unknown, as required by section 5346 of the Digest; that the summons was duly posted on the lot, and was duly published in the proper newspaper, for the proper period; that the proper proof was duly made and filed in said court, showing the same; that the attorneys for the said board in said suit did not make any false representations to the court, as alleged in said complaint. Defendant admits the bringing of the suit in said case, numbered 7752, the decree therein, the advertisement, and the sale by the commissioners of this court (chancery), and the execution of the deed to defendant as alleged in said complaint. Defendant alleges that full proof was duly made to the court of all the steps required for constructive service in said case, as required by law, as is shown by the records and files of the court; that it was the duty of said plaintiff, as a provident owner, to have known of all these steps in said suit, especially since many assessments had previously been made upon said lot, and paid from year to year, either by the plaintiff or by some one acting in his behalf, from which it follows that he was charged with notice that the annual assessments would probably continue; that it is not true that when defendant purchased said lot he knew that said district had no legal existence, and that the said decree was void; that said decree is valid and binding, and said deed is a legal and valid deed."

The defendant also answered the amendment to the complaint, and alleged that the improvement district in question was a de facto district, and the board of improvement a de facto board, at the time of the rendition of the decree; that the lot involved was within the territorial boundaries of the district, which was known as "Street Grading District No. 60," of the city of Little Rock; that all persons interested in the lot were parties to the suit, it being in rem; that the plaintiff had constructive notice of the bringing of the suit; and that the allegation in the complaint in suit numbered 7752 that the owners of the lot were unknown was true in fact, as neither the complainants nor their agents or attorneys had any knowledge as to who the owners were at the time the decree was rendered, and had no available means of knowing who they were.

The cause was heard, in part, on the following agreed statement of...