| Ark. | Jan 15, 1860
Lead Opinion
delivered the opinion of the Court.
The bill was exhibited by Daniel E. Williams and William H. Etter, against the executor and devisees under the will of Thomas H. W. Maddux, deceased, for partition of certain lands described as lots 1, 2, 3^ and 4, in block 8, and lot 3, in block 22, situate in the town of Washington; and for an account of rents and profits.
The court decreed for the complainants and the defendants appealed.
It appears that at a sale of the premises for taxes, .made by the sheriff on the 3d November, 1851, the complainants and Maddux, the testator, became the purchasers, to whom as tenants in common, the sheriff, on the 20th November, 1852, made a deed in due form, containing the usual recitals.
At the time of the sale, Maddux was in possession of the premises under a lease from one Miller, who was the former owner; and after the sale continued in possession until the day of his death, recognizing the validit}' of the sale, and holding under it. By his will he disposed of his undivided interest in the premises to certain of his devisees, who are made defendants to the bill.
The defence was that.the sale for taxes was void, and did not divest the title of Miller, which the defendants allege is outstanding and paramount.
Some of the objections relied on to impeach the- validity of the sale, relate to the assessment of the lots, and are similar to those urged in Kinsworthy et al. vs. Mitchell & wife, at the present term, and which the court decided were not maintainable. Other objections, however, are taken, and especially that relating to the assessment for back taxes for a period anterior to the formation of the State government. But whether well taken or not, it is immaterial to enquire, as the defendants are estopped to set them up.
Under our system, the particular lands taxed are, by express legislation, made liable for the taxes, Gould's Dig! chap. 148, sections 106, 133; the legal effect of which is to make the State first creditor for the taxes, and give her a lien for the payment paramount to all individual claims. In other words, it makes the taxes a charge which attaches to the land under all circumstances, regardless of incumbrances, or the rights of any one whomsoever. See Merrick Fenno vs. Hutt, 15 Ark. 340, 343. So that the sale of the lots, if valid, not only extinguished the title of Miller, but also cut off the lease from him to Maddux. And though Maddux was in possession at the date of the sale, as the tenant of Miller, it was, nevertheless, lawful for him to become the purchaser of the premises, as held in Bettison vs. Budd, 17 Ark. 546" date_filed="1856-01-15" court="Ark." case_name="Bettison v. Budd">17 Ark. 546; and having become such'purchaser jointly with the complainants, and the deed of the sheriff to him and the complainants, as tenants in common,being prima facie evidence of valid legal title, Gossett vs. Kent, 19 Ark. 611, and having held the premises under the tax title thus acquired, and enjoyed the rents and profits, he could not have been heard to set up an outstanding title in a stranger, in order to defeat a partition, and protect himself against liability to his co-tenants for the rents and profits. See Proprietors of Bahitree vs. Battles, 6 Vermont, 395; Jackson vs. Kinman, 10 John. 291; and his executors and devisees stand in no better situation. Let the decree be affirmed with costs.
Dissenting Opinion
dissenting.
• So much of the opinion of the court as intimates a decision sustaining the validity of the tax tille set up by complainants in the court below, I dissent from, for the reasons, first: The assessment of 1851, under which the sale was made, comprehended the taxes supposed to be due for the years 1831 to 1836 inclusive, in all which years the territorial government existed» and I find no authority, either in the State constitution or in the acts of the legislature, directing or empowering the State authorities to assess or collect the unpaid territorial tax, county or State: and a sale bad for a part is so for the whole, as is well established.
Again: the law requires the sheriff or assessor to assess the lands as “ best he can,” and the presumption is, until the contrary is proven, that in making an assessment, he has done his duty. But if, as in this case, he sees proper to stultify himself by testifying in the case, that he made no assessment at all himself, but copied into his own book an assessment madehiy another person, having no official connection with his office and having no legal right to make an assessment, the presumption is destroyed, and the proposition established that he did not assess the lands “as best he could” — hence not as the law required him; and the act becomes void, and lays no foundation for title.
But it is proven that Maddux repudiated the lease taken from Miller, the original owner; for by agreement with his co-tenants, Williams and Etter, he erected and used a house upon the premises, and therefore is estopped from disputing or calling in question their title in any way, whether'it be void or otherwise.