Burcham v. Terry

| Ark. | Jan 30, 1892

Hughes, J.

This is a suit by appellant to recover the -possession of land described in the complaint, for title to which the appellant relies upon a deed from Paul M. Cobbs, commissioner of state lands, executed to him„which deed -recites and is based upon a sale of the land to the State, under the overdue tax act of 1881.

The appellee claims ownership to the land through Edward Tolbert, who “homesteaded” the land in 1875 under the United States homestead laws, and obtained his “ final ■certificate” from the United States on the 20th of January, 1882, and received a patent from the United States therefor the 10th day of- February, 1883. Appellee denies the validity of appellant’s deed because, he says, the land was owned by the United States in the years 1880 and 1881, for the taxes of which years the lands were proceeded against in the overdue tax suit, and for which they were sold to the State ; that said deed is void because the land was sold for certain illegal taxes and for an attorney’s fee of $5 in gross, etc.

The suit against these lands under the overdue tax act was commenced on the 14th of October, 1882, after Tolbert had obtained his *‘ final certificate.” The court below found the facts substantially as stated, and declared the deed of the State to appellee void, for the reason that the State had acquired no title to the lands at the overdue tax sale, because the lands were the property of the United States in 1880 and 1881, for the taxes assessed for which years they had been sold; and also for the reason that illegal taxes were assessed for said years against said lands, and for which they were adjudged to be sold, as well as for other taxes,.

1. whenhometaxable.6 com 6 s In Gilkerson-Sloss Co. v. Forbes, 54 Ark., 148, it is held that “ one who has become entitled to a patent, under the homestead act of congress, may mortgage the land before the patent issues; ” that “ when a person does everything that is necessary to entitle him to a patent for a tract of public land, he becomes the equitable owner thereof. The land is segregated from the public domain, ceases to be the property of the government, and, in the absence of limitations and restrictions legally imposed, becomes subject to private ownership and all the incidents and liabilities thereof.”

Among'the most certain incidents and liabilities of the ownership of property by a private person is its liability to taxation. That the owner of lands entered at the United States land office should be able to claim that they were exempt from taxation until he should have obtained a patent for them from the government, cannot be maintained. If this could be the case, a large amount of lands owned by private-persons would escape taxation, at least until a patent issued for them. It follows that these lands in controversy were subject to taxation after the “final certificate” was issued to Tolbert, and they were subject to taxation at the date, of the decree and sale in the overdue tax suit.

2. Conclusiveness of overdue tax decree. • The chancery court that rendered the decree under which they were sold to the State had jurisdiction ox the subject matter of the suit, which was a proceeding in rent. That illegal taxes had been assessed against the lands, and that, they had been assessed for taxation for .years when they were not liable for taxes, were matters of defense which might have been shown in the overdue tax suit, but they cannot be shown in a collateral suit. These matters might have been litigated in the overdue tax suit, and the decree in that suit is conclusive here as to all matters that could have been litigated in that suit except the question of jurisdiction. Mayo v. Ah Loy, 32 Cal., 477" date_filed="1867-07-01" court="Cal." case_name="Mayo v. Ah Loy">32 Cal., 477. This case falls within the principle decided in McCarter v. Neil, 50 Ark., 188, and Williamson v. Mimms, 49 Ark., 336. 1 Black on Judgments, sec. 245.

The judgment is reversed, and the cause is remanded for a new trial.

Mansfield, J., did not sit in this cause.