Williamson v. Mimms

• Decision Date: 11 July 1887
• Citation: 5 S.W. 320,49 Ark. 336
• Parties: WILLIAMSON v. MIMMS
• Court: Arkansas Supreme Court

5 S.W. 320

49 Ark. 336

WILLIAMSON v. MIMMS

Supreme Court of Arkansas

July 11, 1887

APPEAL from Little River Circuit Court in Chancery, H. B. STUART Judge.

Affirmed.

O. D Scott and Compton & Compton for appellants.

1. Plaintiffs are estopped by the acts and declarations of Mimms. Defendants purchased relying on these statements and declarations that these lands were free from all incumbrances, and that the taxes had all been paid. 3 Hill 215; Herman on Estoppel, sec. 323; 25 How. Pr., 203; 47 Barb. 206; 14 Mo. 482; 16 id., 273; 37 id., 213; 39 id., 229; 44 id., 247; 57 id., 384; 14 Phila., 2; 10 Pa. 527; 38 Iowa 654.

2. The statements and acts of Mimms and his declarations to Allen, work an estoppel. See authorities supra. 50 N.Y. 575; 117 U.S. 96; 66 N.Y. 113; 15 Wend. 308.

3. The taxes for which the lands were sold had been paid.

4. Part of the lands not being mentioned in the complaint or order, were not proceeded against, and the court acquired no jurisdiction as to them, this being a proceeding in rem, and there being no personal appearance or service. 1 Hill (N. Y.), 130; 2 How. (U.S.), 43; 2 B. Mon., 453; 6 How. (Miss.), 106; 4 Blackf., 169.

Jones & Martin and John B. Jones for appellees.

The proceeding under the "overdue tax act" was a proceeding in rem. The lands owed the taxes. 18 Wall., 162; 3 Wheat., 319; 18 How., 137; 21 How., 333; 5 Ark. 425; 42 Ark. 344.

The decree of the Little River Circuit Court, a court of superior jurisdiction, cannot be attacked collaterally in this proceeding. The only remedy is by appeal or by some direct proceeding. 11 Ark. 519; 28 F. 867; 21 id., 367; 47 Ark. 419.

The decree in the overdue tax case settled the question as to the payment of the taxes. 5 Wall., 306; 37 N.Y. 74; 3 Wheat., 319.

2. Before an estoppel by parol can affect the title to land, a fraudulent intent must be shown. Malone R. P. Trials, 373--4--5; 26 Cal. 23. There is no pretence that Mimms knew of any claim of back taxes when the contract was executed. As to what is necessary to constitute an estoppel, see Bigelow Est., 552; McLain, Adm'r., v. Buliner, 49 Ark. 218.

The deed from Mimms as administrator contained no warranty. It conveyed only such interest as the estate had. He stood in no relation of trust at the time these lands were sold. Their agent was aware of all the proceedings and had the money in his hands to redeem the lands or pay the taxes.

CLARK, Sp. J. BATTLE, J., did not sit in this case.

OPINION

CLARK, Sp. J.

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 were non-residents of the State, for the recovery of the following lands: East half southwest quarter section 29, north half northeast quarter section 31, and east half northwest quarter 32, all in township 13 south, range 29 west, in Little River county. Complaint was filed on December 24, 1884. The claim of the title set out was a deed to the lands by State Land Commissioner Cobbs, dated 26 November the same year, founded upon and reciting a decree of the Chancery Court of said county, made on the 18th 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 8th day of November, 1882, for the amount of taxes so adjudged against them; the east half southwest 29, for taxes for the years 1868-9-70-71 and '72; the north half northeast 31, for the years 1869-70-71-72-73-74 and '75; and the east half northwest 32 for the years 1869-70-71 and '72.

The defendants, the Williamsons, appeared and put in an answer and cross-complaint setting up certain supposed equitable defences, 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 1000 acres. He died indebted to his brothers, the present defendants, for $ 7000 borrowed money with some accrued interest, which debt became a claim against the estate. Thomas M. McCrary married the widow, and letters of administration d. b. n. were granted to him in June, 1886, and he continued to administer until 1876, when he resigned, and then or shortly afterwards, letted 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 4th 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 unencumbered title to the plantation of about 1000 acres (including the lands in controversy) with an assignment of the widows dower, for their debt--the estate to pay all attorney 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 18th day of July, 1881, the defendants purchased the lands at the sum of $ 8000, 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 defence 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 sometime 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 forty days why a lien should not be declared on the lands for unpaid taxes, and why said lands should not be sold for nonpayment thereof. The order was posted at the court house door only, there being no newspaper published in the county. At the end of forty 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 $ 160 for each forty acres. Upon this valuation the court levied and extended the various State, county and school taxes, upon each forty acres, for all the delinquent years in the aggregate, and not for each year separately, together with eighty cents fees to the Clerk, and two dollars and fifty cents for attorney's fee, amounting to forty-two dollars and thirty-five cents upon each forty-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 8th day of November in that year, unless the said taxes and costs should be paid...