Wolf & Bailey v. Phillips

• Decision Date: 17 March 1913
• Citation: 155 S.W. 924
• Parties: WOLF & BAILEY v. PHILLIPS.
• Court: Arkansas Supreme Court

155 S.W. 924

WOLF & BAILEY v. PHILLIPS.

Supreme Court of Arkansas.

March 17, 1913.

Appeal from Circuit Court, Lawrence County; R. E. Jeffery, Judge.

Action by Wolf & Bailey against Carrie D. Phillips. From a judgment for defendant, plaintiffs appeal. Reversed and remanded.

This is an action of ejectment instituted in the circuit court by Wolf & Bailey against Carrie D. Phillips to recover the following lands situated in the Western District of Lawrence county, Ark., to wit: The W. ½ of the S. E. ¼ and the S. E. ¼ of the S. W. ¼ of section 2, township 17 N., range 3 W. The lands in controversy in this case were patented by the United States government to John Gibbons in 1859. In 1887 these lands were sold to Jesse Gibbons for the nonpayment of the taxes of 1886, and in 1889 tax deeds therefor were duly executed to him. Jesse Gibbons at once took possession of the land under said tax deeds. He began to improve them and lived on them from that time until he died in 1890. At the time of his death he left surviving him his widow and one child, who remained in possession of the lands. His widow lived on the lands until she married again in about 1895. When his widow married, she conveyed her interest in the lands to her daughter. Her daughter still remained on the land, and continued in the possession of same until she sold it to the plaintiffs, Wolf & Bailey, in 1901. The plaintiffs at the time of their purchase took possession of the land, and through their agent, G. G. Dent, rented the land to various parties until the year 1908, at which time they rented the lands to W. G. Goff, who entered into possession as their tenant, and remained in possession of them until March, 1910. The lands were sold in 1906 for the nonpayment of the taxes of 1905, and H. F Sloan became the purchaser at the tax sale. On August 25, 1909, a tax deed was executed to him for a part of said land, and on August 28, 1909, a tax deed was executed to him for the rest of said land. On November 23, 1910, Sloan conveyed the lands to the defendant, Carrie D. Phillips. Sloan paid the taxes on the land for the years 1906, 1907, and 1908. Carrie D. Phillips took possession of the lands on the 11th day of November, 1910. The lands were advertised for sale for the nonpayment of taxes for the year 1905 in a newspaper published in the Eastern district of Lawrence county, but which had a bona fide circulation in the Western district of said county, in which said lands were situated. A newspaper was published and had a bona fide circulation in the Western district of Lawrence county during the year 1906.

This suit was commenced on the 17th day of August, 1911. The plaintiffs introduced evidence tending to show that they remained in possession of these lands through their tenants until in March, 1910. On the other hand, the defendant introduced evidence tending to show that the plaintiffs had not been in possession of the land since the spring of 1909. At the trial of the case the court made an order dismissing the cause of action of the plaintiffs as to part of the lands because of their failure to file affidavit of tender of taxes. But on the next day, at the same term of the court, said order was set aside, and the case proceeded to trial, and was heard as to all the lands embraced in the complaint. The circuit court held that the advertisement of the lands in a newspaper published in the Eastern district of Lawrence county and having a bona fide circulation in the Western district of said county was a valid advertisement for the sale of lands situated in the Western district of Lawrence county for the nonpayment of taxes. It therefore directed a verdict for the defendant, and from the judgment rendered the plaintiffs have appealed.

G. G. Dent, of Annieville, and Samuel Frauenthal, of Little Rock, for appellants. W. A. Cunningham, of Walnut Ridge, for appellee.

HART, J. (after stating the facts as above).

Among other prerequisites to a valid sale of land for taxes is the giving of notice thereof; and, when it is shown that such notice has not been given in substantial conformity with the statute, the sale will be adjudged invalid, notwithstanding a tax deed in proper form may have been duly executed. 2 Cooley on Taxation (3d Ed.) par. 928; Black on Tax Titles (2d Ed.) § 205; 1 Blackwell on Tax Titles (5th Ed.) § 400.

The principal question for our determination is, Was the notice of the sale of the land for the nonpayment of taxes for 1905 given in the manner required by the statute? Lawrence county is divided into two judicial districts. The land was situated in the Western district, and the advertisement of sale for the nonpayment of taxes was made in a paper published in the Eastern district, but which had a bona fide circulation in the Western district. The record shows that the lands in question were advertised in 1906, and that during that year a newspaper was published in the Western district of Lawrence county and had a bona fide circulation therein. The determination of the question depends upon the construction of sections 4923 and 7085 of Kirby's Digest, and the act of May 6, 1905 (Acts 1905, p. 755). By section 4923, Kirby's Digest, it is provided: "All advertisements and orders of publication required by law * * * shall be published in some newspaper published and having a bona fide circulation in the county in which the proceedings...