54 Ark. 665 | Ark. | 1891
This is a suit in equity to quiet the title •of the plaintiff Boehm to two tracts of land situated in township 2 south, range 4 west, in the county of Arkansas, and to cancel a tax title thereto held by the defendant Porter. One of the tracts is part of section 33, and the other is a sub-division of section 34. Both were patented to the State under the act of Congress of September 28, 1850, and were sold by the State in 1859 to Samuel P. Johnson, who conveyed them to the plaintiff in the year 1885.
The complaint states that the defendant claims title to these lands under an Auditor’s deed conveying them to his vendor as lands forfeited to the State for the non-payment •of taxes for the year 1868; that there was no legal assessment, return of delinquency, advertisement or sale of the lands, for the taxes of that year, and that the forfeiture to the State was therefore void and passed no title ; that the plaintiff has tendered to the defendant a sum sufficient to reimburse him for the sum paid on the purchase of the lands and for all taxes subsequently paid thereon, and that the tender was refused.
The defendant by his answer claims title to the land in section 33 under a conveyance executed to him in 1886 by N. B. Price. He alleges that Price purchased that tract at a sale thereof made in 1876 for the taxes of 1873, 1874 and 1875 ; and that, having at the proper time received the clerk’s deed for the land, he subsequently obtained a decree of the Arkansas circuit court confirming the sale.
The answer admits that the defendant’s title to the tract in section 34 was acquired by conveyance from W. M. Price, and that the latter held under a deed executed by the Auditor of State on the 20th day of February, 1872, pursuant to a sale of that tract as land which had been forfeited to the State for the non-payment of taxes. But it denies that the forfeiture was illegal, and avers that the land was regularly assessed, returned delinquent, advertised and sold in the manner provided by law. The several deeds relied upon by the defendant are made exhibits to the answer.
As a further defense applicable to both tracts, the defendant pleads the statute of limitations of seven years and also the statute providing that actions to test the validity of tax sales shall be brought within two years from the date of the sale.
The chancellor found that the sale of the tract in section 33 was confirmed by the decree mentioned in the answer; and as to that tract the plaintiff was denied any relief. But he found that the tract in section 34 was sold for non-payment of the taxes of 1868, and that the sale was made on a day not provided for by the law. On this finding it was adjudged that the sale thus made was void. And the court having also found that the defendant and his vendor had paid on said tract taxes which, together with interest thereon at the rate of 25 per cent, per annum, amounted to the sum of $305.35, a decree was entered fixing a lien on the land for the payment of that sum, and directing a sale to satisfy it in the event of the plaintiff’s failure to make the1 required payment. Both parties have appealed.
In the abstracts filed here by counsel, no facts are stated which could have justified the chancellor in finding that the plaintiff’s action was barred by the seven years’ statute of limitations. The two years’ statute has no application to this case, so far as the plaintiff’s suit is to avoid the sale of the land in section 34. See Radcliffe v. Scruggs, 46 Ark., 96.
Nothing affecting the validity of the sale of the tract in section 33, made by the collector in 1876, is alleged in the complaint or disclosed by the proofs on which the cause was heard. Nor does the abstract or brief of the appellant point out any ground or objection whatever to that sale or to the deed of the clerk made pursuant thereto. The deed contains all the usual and necessary recitals of such a conveyance, and no defect sufficient to avoid it is discovered on its face. It was sufficient, in connection with the conveyance executed by Price, to establish a prima facie title in the defendant; and, in the absence of evidence impeaching the sale, he was under no necessity of relying upon the decree confirming it. Independently of that decree the evidence showed that the plaintiff’s vendor had been divested of title to the land in section 33, and it is therefore unnecessary to decide whether the proceeding for confirmation is open to any of the numerous objections which counsel for the appellant have urged against it. The decree of the court below, so far as it relates to the land embraced in the clerk’s deed, is without error, and it is to that extent affirmed.
The court properly required the plaintiff to reimburse the defendant for all taxes paid on the land by the defendant or his vendor subsequent to the date of the latter’s purchase. And the tender made by the plaintiff does not appear to have been such as to stop the accrual of interest on the sums the defendant was entitled to receive. Cole v. Moore, 34 Ark., 589; Hamlett v. Tallman, 30 Ark., 505. But it was error to compel the plaintiff to pay interest at the rate of 25 per cent, per annum. Section 75 of the act of July 23, 1868, providing for the payment of interest at that rate to the purchaser of lands sold for taxes, applies only to actions to recover the possession of such lands. And, upon a bill to set aside an illegal sale made under that act, equity will impose upon the land owner no harder terms than those provided for in section 72. That section is as follows: “ Upon the sale of any land or town lot for delinquent taxes, the lien which the State has thereon for taxes then due is transferred to the purchaser at such sale, and if such sale proves to be invalid on account of any irregularity in the proceedings of any officer having any ■duty to perform in relation thereto, the purchaser at such sale is entitled to receive from the proprietor of such land or lot the amount of taxes, penalty and interest legally due thereon, and the amount of taxes paid thereon by the pur-chaser subsequent to such sale; and such land or lot is bound for the payment thereof.” This does not require the payment of an illegal assessment or interest at a higher rate than 6 per cent, per annum.
So much of the decree as affects the land in section 34 is reversed; and the cause with reference to that tract will be remanded for further proceedings in accordance with this opinion. The court below is directed to enter a decree setting aside the tax sale of said land and cancelling the defendant’s title thereto. But such decree must establish a lien on the land in favor of the defendant for the sum due upon it at the time of its forfeiture for the State taxes of 1868, and the penalty which had accrued thereon, with interest on said sum at the rate of 6 per cent, per annum from the date of the Auditor’s sale; also for the several sums paid by the defendant and his vendor in discharge of taxes lawfully levied upon said land since the 20th day of February, 1872, with legal interest upon each of said sums from the date of its payment. And the court will, by appropriate order, direct that, in default of the payment of said sums and interest to the defendant within sixty days after the entry of said decree, the land shall be sold for the satisfaction of the lien thus to be established. Such sale shall be made and conducted in the manner provided by law for judicial sales of real estate. And, after the payment of the sums due to the defendant, the residue of the proceeds thereof, less the amount of any costs directed to be paid ■out of the same, shall be paid to the plaintiff.