114 Ark. 551 | Ark. | 1914
(after stating the facts). It is contended that the decree of foreclosure of the lien, and, the sale thereunder, of the land for delinquent taxes, are void because an affidavit in proof of the publication of the notice of the pendency of the suit shows it was published twice only instead of four times, as the law requires, and ■because of appellant ’a attempt to pay the taxes in proper time and failure to do so by reason of the collector’s mistake. The decree in the foreclosure proceeding recites: “Upon call of this cause it appearing that all persons and corporations having or claiming interest in any of the lands hereinafter described have been fully and constructively summoned as required by law, and that said interested persons' .and corporations come not but make default.” Tbe commissioner’s sale for tbe collection of delinquent taxes in tbe drainage district under wbicb appellant claims title, was made under Act 111 of tbe Acts of 1907, section 7 of wbicb provides: “Notice of tbe pendency of such suit * * * (for tbe foreclosure of tbe lien) shall be given by publication weekly for four weeks prior to tbe day of tbe term of court on which final judgment may be entered for tbe sale of tbe land, in some newspaper published in tbe ¡county where such suit miay be pending.”
Appellee attempts to show in this an entirely different proceeding, that tbe judgment of tbe court condemning the lands to sale for payment of tbe delinquent taxes was without jurisdiction for failure to give notice of tbe pendency of tbe suit by publication as the law requires, notwithstanding tbe recitals of tbe decree that such notice bad been duly given, by introducing what purported to be an affidavit in proof of tbe publication of such notice, showing only that it was published two times instead of four, as tbe statute provides.
It follows that the chancellor erred in dismissing the complaint and cancelling appellant’s deeds and the decree is reversed and the -cause remanded with direction to enter a decree awarding the possssion of the lands described to appellant.