151 S.W.2d 101 | Ark. | 1941
Appellee, as trustee, acquired title to lot 84 and the south 64 feet of lot 85 in that part of the city of Helena known as Old Helena, in 1928, on which he ceased to pay taxes subsequent to those for the year 1933. On November 4, 1935, the property was sold to the state for the taxes due thereon for the year 1934, and this sale was confirmed in a proceeding for that purpose brought under the authority of act 119 of the Acts of the 1935 session of the General Assembly. The confirmation decree was rendered November 28, 1938. On December 29, 1939, appellant purchased the lots from the state.
On March 22, 1937, a decree was rendered pursuant to which the lots were sold for the nonpayment of certain improvement district taxes. The lots were sold to the improvement district under this decree, and appellant Faulkner purchased them from the improvement district January 16, 1940. *458
Suit was filed by appellee, trustee, March 4, 1940, in which he attacked both the deed from the state to appellant and the deed to appellant from the improvement district, and prayed the right to redeem from the sale to the state and the improvement district. Both sales were held void, and the right of redemption was accorded, from which decree is this appeal.
We are of the opinion that the defects in the sale for the 1934 general taxes were cured by the confirmation decree, and that appellant acquired title to the lots under his deed from the state. Under this view it is unimportant to consider whether appellant may not also have acquired title under the deed from the improvement district, and we shall, therefore, discuss only the decree confirming the sale to the state.
The court found "that on account of the failure of the clerk of Phillips county to extend the taxes levied on said premises as required by law, and on account of the failure of the clerk to attach to the list of lands returned delinquent, his certificate, stating in what newspaper and for what length of time notice of sale of such lands was given, as required by law, the sale of said premises to the state was void for want of power and authority to sell the same."
For the affirmance of this decree appellee cites and relies upon the cases of Mixon v. Bell,
For the apparent purpose of strengthening the confirmation act of 1929, and to validate tax sales which a confirmation decree under that act did not effect, the General Assembly passed, at its 1935 session, act 119, another confirmation act, which we have since had several occasions to construe. *459
In the first of these cases construing act 119 — that of Fuller v. Wilkinson,
The case of Berry v. Davidson,
The later case of Commercial National Bank v. Cole Bldg. Co.,
Appellee cites as sustaining the decree from which is this appeal the cases of McWilliams v. Clampitt,
The first of these — the McWilliams case — did not involve the effect of a confirmation decree, the question in that case being whether the curative provisions of act 142 of the Acts of 1935 applied, and it was held that they did not apply, for the reason that the notice of sale had not been published for the time and in the manner required by law, this publication being made, by act 142, a condition upon which its curative provisions should be applied.
In the second case — that of Hirsch v. Dabbs — the defendant landowner appeared within a year of the date of the confirmation decree there attacked, and made the showing that the sale was invalid. He did this under the authority of 9 of act 119, there quoted, which reads, in part, as follows: "The owner of any lands embraced in the decree may, within one year from its rendition, have the same set aside insofar as it relates to the land of the petitioner by filing a verified motion in the chancery court that such person had no knowledge of the pendency of the suit, and setting up a meritorious defense to the complaint upon which the decree was rendered. The chancellor shall hear such defense according to the provisions of this act as though it had been presented at the term in which it was originally set for trial."
But in the instant case appellee did not appear within the year allowed by 9 of act 119. Had he done so, the relief accorded in the Hirsch case, supra, would have been accorded him; but appellee here failed to avail himself of the provisions of 9 of act 119, above quoted.
The case of Lundell v. Wood,
That case, like this, involved a sale for the 1934 taxes in Phillips county, and we have before us the identical record there reviewed, this being the record for the sale of the 1934 taxes in Phillips county, and the decree *461 confirming the sale. It was there held (to quote the headnote) that "A sale of land to the state of Arkansas for taxes, defective because taxes were not fully extended on tax books by clerk of county court as required by statute, was validated by a decree of the chancery court confirming the state's title entered in a suit brought by the state under statute authorizing the filing of a suit to confirm title in the state whenever any realty has been forfeited to the state for the nonpayment of taxes. Acts Ark. 1935, act 119, 1, 6, 9; Pope's Dig. Ark., 13758."
The effect of the views here expressed is to hold that appellee has lost his title as a result of the decree confirming the 1934 tax sale; and we do not, therefore, consider the effect of the sale of the same property for the improvement district taxes.
The decree from which is this appeal will, therefore, be reversed, and the cause remanded, with directions to dismiss appellee's complaint as being without equity.