127 S.W.2d 645 | Ark. | 1939
On January 6, 1936, appellee, as trustee for the Union Trust Company, filed suit to foreclose a deed of trust executed to the trust company by W. K. Oldham and wife. On February 18, 1936, an amendment to the complaint was filed alleging that appellant, C. W. McAllister, claimed some interest in the lands described in the deed of trust sought to be foreclosed in which *1157 amended complaint it was prayed that McAllister be summoned to answer and that his interest, whatever it may be, be adjudged junior and subordinate to the lien of the deed of trust.
On February 26, 1936, McAllister filed a separate answer and cross-complaint, in which he alleged ownership of some of the lands described in the deed of trust, under a purchase from the state in January, 1936, as "forfeited lands," and he exhibited deeds therefor from the State Land Commissioner. The deeds to McAllister from the State Land Commissioner were based upon the forfeiture and sale of the lands to the state on June 12, 1933, for the nonpayment of the taxes due thereon for the year 1932.
The plaintiff trustee filed a "Separate answer to the cross-complaint of defendant McAllister," in which it was alleged that this tax sale was void for numerous reasons, and it was prayed that the deeds from the State Land Commissioner to McAllister, based thereon, be canceled as clouds upon plaintiff's title, full tender having been made McAllister.
It very clearly appears that the sale of these lands for the 1932 taxes due thereon was void for one or more of the several reasons alleged by plaintiff trustee; but Act 142 of the Acts of 1935, page 402, was in effect when the pleadings, above referred to, were filed, and, as was said in the recent case of Kansas City Life Insurance Co. v. Moss,
We have a number of cases construing this act 142 of the Acts of 1935, the first being the case of Carle v. Gehl, cited in the case of Kansas City Life Insurance Co. v. Moss, from which we have just quoted, and which is one of the latest cases in which that act was construed. *1158 These and the other cases are to the effect that "irregularities, informalities or omissions" in a tax sale which do not "go or extend to the power to make the sale of the property, or prevent the exercise of that power to sell," are cured by this act 142.
Section 1 of Act 142 provides that "Whenever the state and county taxes have not been paid upon any real or personal property within the time provided by law, and publication of the notice of the sale has been given under a valid and proper description, as provided by law, the sale of any real or personal property for the nonpayment of said taxes shall not hereafter be set aside by any proceedings at law or in equity because of any irregularity, informality or omission by any officer in the assessment of said property, the levying of said taxes, the making of the assessor's or tax book, the making or filing of the delinquent list, the recording thereof, or the recording of the list and notice of sale, or the certificate as to the publication of said notice of sale; provided that this Act shall not apply to any suit now pending seeking to set aside any such sale, or to any suit brought within six months from the effective date of this Act for the purpose of setting aside any such sale."
Without reviewing the defects alleged and shown to exist in the sale for the taxes of 1932, it may be said that they were such "irregularities, informalities and omissions" as would be cured by Act 142 if that act applies to the sale here under review. It will be observed that for this act to apply to and cure a tax sale which would otherwise be void, it is essential that the taxes have not been paid and that "publication of the notice of the sale has been given under a valid and proper description, as provided by law."
Here, the testimony shows that no record was made showing publication of the notice of sale, and the undisputed testimony of the Deputy County Court Clerk, the custodian of the tax records, and that of an experienced abstractor of land titles who had intimate knowledge of the tax and other records of that county affecting land titles, confirms this fact. *1159
There is no record which shows when the delinquent list was filed, or when it was recorded, and there is no record showing that any notice of the sale was published. It is true that 5 and 6 of Act 250 of the Acts of 1933 were in force when the sale was made. The effect of these sections was considered and announced in the recent case of Hirsch and Schuman v. Dabbs and Mivelaz, ante p. 756,
It is argued that under Act 250 it is no longer necessary to make a record showing the date and manner of the publication of the notice of sale. This contention was made in the Hirsch Case, supra, but that contention was not sustained. On the contrary, it was held that the provisions of 10085, C. M. Digest, requiring the clerk of the county court to record the list and notice of sale, stating "in what newspaper said list was published and the date of publication, and for what length of time the same was published . . .," had not been repealed, and this record was not made.
In the recent case of Emerson v. Voight,
It is argued that upon the production of the deeds from the State Land Commissioner based upon the sale for the 1932 taxes, a presumption arises that the sale was *1160 conducted in a manner conforming to law. This is true. But this presumption is only prima facie, and may be shown to be untrue, and, as we have said, the testimony shows, as the court below found, that there was no publication of the notice of sale.
This fact alone would render the sale void, and operates to prevent the curative provisions of Act 142 from applying.
The right of the trustee to question the validity of the sale is raised. The trustee made tender to the tax purchaser, the sufficiency of which is not questioned, and the title of the trustee to the lands described in the deed of trust sufficiently supports his right to question the tax sale. Upon filing the suit to foreclose, a receiver was appointed, who has since been in possession of the land, and this possession is, of course, for the benefit of all parties in interest. The case of Britt v. Harper,
This suit is, in effect, one to redeem, and when a sufficient tender for that purpose was made and refused, nothing remained to do but to file suit to cancel the deeds and thus enforce the right of redemption, and the effect of canceling the commissioner's deeds was to permit a redemption.
This relief was prayed by the owner of the equitable title to land which had been forfeited to the state for the non-payment of the taxes due thereon in the case of Woodward v. Campbell, Commissioner,
The decree of the court below, from which is this appeal, conforms to the views here expressed, and it is, therefore, affirmed.