Williamson v. Mimms
| Citation | 5 S.W. 320 |
| Parties | WILLIAMSON and others <I>v.</I> MIMMS and others. |
| Decision Date | 11 July 1887 |
| Court | Supreme Court of Arkansas |
O. D. Scott and Compton & Compton, for appellants. Jones & Martin and John B. Jones, for appellees.
CLARK, Special Judge, (Hon. B. B. BATTLE being disqualified.)
This was an action of ejectment brought in the Little River circuit court, by Andrew J. Mimms, A. R. Moores, and W. P. Feazel, against J. L. Williamson, George Williamson, and J. C. Williamson, all of whom where non-residents of the state, for the recovery of the following lands: E. ½ S. W. ¼ section 29; N. ½ N. E. ¼ section 31; and E. ½ N. W. ¼ 32,—all in township 13 S., range 29 W., in Little River county. Complaint was filed on December 24, 1884. The claim of title set out was a deed to the lands by the state land commissioner, Cobbs, dated twenty-sixth November, the same year, founded upon and reciting a decree of the chancery court of said county, made on the eighteenth day of March, 1882, under the act of March 12, 1881, known as the "Overdue Tax Law," under which decree these lands, with a large amount of other lands, were condemned to sale for the non-payment of back taxes, and sold to the state on the eighth day of November, 1882, for the amount of taxes so adjudged against them,—the E. ½ S. W. 29, for taxes of the years 1868, 1869, 1870, 1871, and 1872; the N. ½ N. E. 31, for the years 1869, 1870, 1871, 1872, 1873, 1874, and 1875; and the E. ½ N. W. 32, for the years 1869, 1870, 1871, and 1872.
The defendants, the Williamsons, appeared and put in an answer and cross-complaint, setting up certain supposed equitable defenses, and, upon their motion, the case was transferred to the equity docket; and, upon motion of the plaintiffs, a receiver was appointed, with directions to take possession of the lands, and collect the rents for 1885, and rent the same out for the year 1886 to the highest bidder.
From the pleadings and evidence in the record, the following facts appear:
Ben E. Williamson, who was a brother of these defendants, died intestate during the war, owning these lands, with other lands, constituting a plantation of about 1,000 acres. He died indebted to his brothers, the present defendants, for $7,000 borrowed money, with some accrued interest, which debt became a claim against the estate. Thos. M. McCrary married the widow, and letters of administration d. b. n. were granted to him in June, 1866, and he continued to administer until 1876, when he resigned, and then, or shortly afterwards, letters d. b. n. were granted to A. J. Mimms, one of the present plaintiffs, whose wife was a daughter of the intestate, and an heir of his estate, and he continued to administer until the estate was wound up, in 1881. The wife of the plaintiff Moores was also a daughter of the intestate, and an heir of the estate.
It seems that there was some trouble among the parties about the claim of the Williamsons, but on the fourth of September, 1880, they obtained a final judgment against the administrator, Mimms, in the Sevier county circuit court, on appeal from the probate court, (the claim having been filed before the new county of Little River had been formed,) for upwards of $15,000. This judgment being filed and classed in the probate court, the parties came together, and entered into a compromise, which was drawn up and signed and sealed by the defendants Williamson, by the administrator, Mimms, and by McCrary and wife. By this compromise the Williamsons were to take a clear and unincumbered title to the plantation of about 1,000 acres, (including the lands in controvery,) with an assignment of the widow's dower, for their debt; the estate to pay all attorney's fees and all costs, and the agreement to be sanctioned by the probate court. And, to consummate a title in accordance therewith, a petition was to be filed by the administrator, and an order of the probate court to be obtained in the ordinary form for the sale of the lands,— all of which was carried out as agreed; and at the sale, which was made on the eighteenth day of July, 1881, the defendants purchased the lands at the sum of $8,000, and a deed to them by the administrator was duly confirmed by the court. They executed an acquittance for the whole judgment, and went into possession of the lands, and remained in possession by their tenants until after the commencement of this suit.
No issue is raised as to the legality of these proceedings, or the Williamsons' title created thereby, but the articles of compromise and the administrator's deed, as well as most of the other facts in the case, must necessarily be brought into view upon the defendant's plea of equitable estoppel. It will be seen that the overdue taxes for which the lands were forfeited to the state were for the years prior to this purchase and during the administration of McCrary; and, in connection with the defense of a legal estoppel, it is alleged and satisfactorily proven that, after the purchase of the Williamsons, they employed the plaintiff Mimms as their agent in this state to take charge of the lands, and collect rents, pay taxes, etc.; and that Mimms did act as such agent until some time in the year 1882, when he ceased to be their agent, and one John R. Allen was appointed and acted as such until after the lands in controversy had been condemned and sold to the state, and the time for redemption had expired. In that suit the county court, it seems, employed one Head, an attorney, and Feazel, one of the plaintiffs herein, who was also an attorney, and had been the attorney for Mimms in the settlement of the Williamson estate, and was familiar with all the proceedings therein, to hunt all the lands in the county subject to be proceeded against for non-payment of taxes under the said act, to furnish a list thereof, and to prosecute the suit through the chancery court for the recovery of such unpaid taxes. A list of the lands was made out, with the help of R. S. Chaytor, the circuit clerk, and their petition was filed some time in the spring of 1882.
The record entries in the tax suit are exhibited and made a part of the record in this case; and it appears that, on the day of the filing, the court made an order, as provided in the statute, requiring all persons having any interest, etc., to show cause within 40 days why a lien should not be declared on the lands for unpaid taxes, and why said lands should not be sold for non-payment thereof. The order was posted at the court-house door only, there being no newspaper published in the county. At the end of 40 days, there being no appearance, the complaint was taken as confessed, the lands condemned to the payment of back taxes; and, expressly because the lands had not been assessed or put upon the tax-books for the said years, the court ordered an assessment and valuation of the lands to be made now for then by the county assessor. And the assessor subsequently returned his list of the lands, with the value annexed of $166, for each 40 acres. Upon this valuation the court levied, and extended the various state, county, and school taxes upon each 40 acres, for all the delinquent years in the aggregate, and not for each year, separately, together with 80 cents fees to the clerk, and $2.50 for attorney's fee, amounting to $42.35, upon each 40-acre tract, and, for all the tracts, $254.10; and the court decreed the lands to be sold at the court-house door on the eighth day of November, in that year, unless the said taxes and costs should be paid within 20 days of such decree, and the said clerk, R. S. Chaytor, was appointed commissioner to sell the same. The lands were sold on that day, and, as no one bid, they were struck off to the state for the taxes and costs. The dates of the several orders do not appear in the record, except the time of filing the petition, and the sale of the lands.
It will be seen that these proceedings were going on while Mimms was agent for the owners of the lands, but the sale did not take place until he had ceased to be agent, and Allen had taken his place. Some time before the sale, Allen having learned of these proceedings from the clerk, Chaytor, called upon Mimms at his store, to inquire about the matter, when certain conversations were had and statements made by Mimms, and then the parties went to the clerk's office, where other statements were made in the presence of Chaytor, the clerk; and upon these statements, with others to the same effect, the defendants rely as working, together with other circumstances, an equitable estoppel, as we have before stated, upon the plaintiffs to claim the lands.
The evidence of these statements is greatly conflicting. Allen in his testimony says, when he called on Mimms, he manifested great surprise at such proceedings, or, rather, that any of the Williamson lands should be involved; and assuring him that the taxes had been paid, advised him not to pay them, and that he (Mimms) would get the tax receipts, and make a showing that the back taxes had been paid. He stated that he had the receipts; that the forfeiture was a mistake; that he would fix it up, and that Allen need give himself no more trouble about it; that knowing that Mimms had been acting as agent for defendants, and was of kin to them, and had administered upon the estate, and had sold the lands to them, he put the utmost confidence in the statements, and feeling secure that the taxes had been paid, and that there would be no danger, he omitted to pay the taxes or to redeem the lands after the sale, although he had retained, out of the rents of the lands, $300, to pay if necessary. Mimms, in his testimony, admits that he had conversations with said Allen at the times stated, and that he told him that he thought that the taxes had been paid; that he did not know that any of the Williamson lands were contained in the advertisement, and did advise him not to pay the taxes...
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