Cooper v. Freeman Lumber Co. , 61 Ark. 36 ( 1895 )

Hughes, J.

(after stating the facts). Section 5763 of Mansfield’s Digest (now section 6606 of Sandels & Hill’s Digest), provides, after prescribing the notice to be attached to the delinquent list of lands to be advertised for sale, that “the clerk of the county court shall record said list and notice in a book to be kept by him for the purpose, and shall certify at the foot of said record, stating in what newspaper said list was published,” etc. This section further requires that said list shall show the taxes, penalty and costs due upon each tract, and that it shall be stated in said notice that each tract, or so much thereof as will be necessary to. pay the same, will be sold for the taxes, penalty and costs due thereon, unless the same are paid before the day of sale.

Section 5769 of Mansfield’s Digest (now section 6612 of Sandels & Hill’s Digest) provides that “ the clerk of the county court shall attend all such sales of delinquent lands, * * * made by the collector of the county, and shall make a record thereof in a substantial book, therein describing the several tracts of land * * * as the same shall be described in the advertisement aforesaid, stating what part of each tract of land * * * was sold, the amount of taxes, penalty and cost due thereon and to whom sold; and he shall record in a separate book, to be kept for that purpose, each tract of land * * sold to the state, together with the taxes, penalty and cost due thereon. Immediately after such sale, the clerk of the county court shall make out and certify to the auditor a copy of each of said sale lists as recorded in said book.”

Taxsaie void for ex< sive costs,

It is contended for the appellees that the record of i . - . . the list ana notice required to be kept by the section first named is the record of the sale to which we must look to determine the amount of the taxes, penalty and cost for which each tract of land was sold. But evidently this is not the case, as the record is required to be made before the sale, and therefore cannot be a record of what was done at the sale. It is only the record of the delinquent list, the notice of sale and the amount of taxes, penalty and cost, for which the collector proposes to sell each tract, unless the same are paid before the day of sale. It follows that the sales of these tracts were void, under the decision, in Goodrum v. Ayers, 56 Ark. 93, where it is held that a sale for twenty-five cents too much was void. We are constrained by the record to find that these items of twenty-five cents and ten cents were included in the amounts for which each of these tracts was sold.

Constitutionality of < cutting off meritorious defenses to tax title.

Does the act of March 31, 1883 (Sandels & Hill’s Digest, sec. 6625), cut off this defense. The section is as follows: “Section 6625. In all controversies and suits involving title to real property, claimed and held under and by virtue of a deed executed substantially as aforesaid by the clerk of the county court, the party claiming title adverse to that conveyed' by such deed shall be required to prove, in order to defeat the said title, either that the said real property was not subject to taxation for the year (or years) named in the deed, or that the taxes had been paid before the sale, that the property had been redeemed from the sale according to the provisions of this act, and that such redemption was had or made for the use and benefit of persons having the right of redemption, under the laws of this state ; or that there had been an entire omission to list or assess the property, or to levy the taxes, or to give notice of the sale, or to sell the property. But no person shall be permitted to question the title acquired by a deed of the clerk of the county court, without first showing that he, or the person under whom he claims title to the property, had title thereto at the time of. the sale, or that title was obtained from the United States or this state after the sale, and that all taxes due upon the property have been paid by such person, or the person under whom he claims title as aforesaid. Provided, In any case where a person had paid his taxes, and, through mistake (or otherwise) by the collector, the land upon which the taxes were paid was afterwards sold, the deed of the clerk of the county court shall not convey the title. Provided, further, In all cases where the owner of lands sold for taxes shall resist the validity of such tax title, such owner may prove fraud committed by the officer selling said lands or in the purchaser, to defeat the same, and, if fraud is so established, such sale and title shall be void.”

Under the decisions of this court in Cairo & Fulton R. Co. v. Parks, 32 Ark. 131, and in Radcliffe v. Scruggs, 46 Ark. 96, a substantial ‘‘meritorious defense” against a claimant under a purchase at tax sale cannot be denied or cut off by the legislature.

In Radcliffe v. Scruggs, the court, by Mr. Justice Smith, said : ‘‘And by ‘meritorious defense’ we mean any act of omission of the revenue officers in violation of law and prejudicial to his (the former owner’s) rights or' interests, as well as the jurisdictional and fundamental defects which affect the power to levy the tax or sell for the non-payment. ***** Our legislature and previous decisions have always distinguished •class of defects (mere irregularities or informalities) which have no tendency to injuriously affect the tax payer, and substantial defects, such as go to the jurisdiction of the levying court to levy a particular tax or of the power of the officer to sell for non-payment or the omission of any legal duty, which is calculated to prejudice the land owner.”

Can it be doubted — in fact, is it not very clear — that to sell a land owner’s land for an amount not due upon it, and never levied upon it, and which, if levied,- was -unlawfully levied, has a direct tendency to injuriously affect his interest, and the .power of the officer to sell for non-payment ? It is obvious that the defenses against the tax sales in this case are ‘‘meritorious,” as -that term is defined in Radcliffe v. Scruggs, and by the weight of authority, and that the legislature cannot deprive the property owner of such defense without, in -the language of Mr. Justice Smith, ‘‘transcending the boundaries of its power.” This is substantially the language of Judge Caldwell, in Martin v. Barbour, 34 Fed. Reporter, 713, in which the court was considering one of the provisions of this same statute, but not the exact question in this case.

The smallness of the amount of the excess over the amount due does not in a tax sale affect the question, as the maxim, iiDe minimis non curat /e¿r,”does not apply to tax sales.

The provisions of the law made for the protection and benefit of the tax payer are mandatory.

Though the act copied herein was passed since Cairo & Fulton R. Co. v. Parks and Radcliffe v. Scruggs were decided, it in no wise affects or unsettles the principle settled in these cases — that it is beyond the power of the legislature to take away from the property owner a “meritorious defense” against a substantially defective tax sale, where the defect goes to the power of the court to levy the tax, or of the officer to sell for nonpayment.

As said by Judge Cockrill in Townsend v. Martin, 55 Ark. 192, after reviewing our decisions upon the principles involved in this discussion, the doctrine of “stare decisis” should apply in this case: “It is more important (to use his language) that such questions should be finally settled than'how settled.”

conclusiveness of record of tax sale,

It was error to permit the clerk and tax collector to- # x give oral testimony to contradict or vary the record of the sale made by the clerk after the sale. It could not be contradicted by parol testimony, being a record required by law to be kept by the clerk, and the evidence of what was done at the tax sale.

Decree reversed and cause remanded, with directions. to enter decree'quieting appellant’s title as against these tax purchasers, with reservation of lien to tax purchasers for taxes, penalty and costs paid.

Bunn, C. J., being disqualified, did not participate in the trial of this cause.