Ingram v. Sherwood , 75 Ark. 176 ( 1905 )

Riddick, J.,

(after stating the facts.) The only question presented by this appeal is whether a decree confirming a tax title rendered in a suit brought by one Rugg, who afterwards conveyed the land to the ancestor of defendant, was a valid decree or not.

Rugg purchased this tax title from Burroughs, and as he had borrowed the money with which to pay for the land from F. A. Sherwood, by agreement between these parties the land was conveyed by Burroughs to Sherwood, to be held by him as security for the debt which Rugg owed him. While the legal title to the land was in Sherwood, yet he held this title as security for the payment of the debt due from Rugg. Rugg was owner of the equitable title, and in equity would be treated as the owner of the land, and that was sufficient to entitle him to bring an action to confirm the tax title. Scott v. Watkins, 22 Ark. 556.

Nor do we think that the allegation in the notice for confirmation that the land'had come to Rugg by a regular chain of conveyances from Burroughs, the purchaser from the State, was such a misrepresentation as rendered the decree of confirmation invalid. The statement was inserted in the notice by the attorney for Rugg while under the impression that Rugg was the owner of the legal title. On being informed by Rugg that he was the owner only of an equitable title, no change was made. But this variance was not so material as to affect the .jurisdiction of the court. Rugg was in fact the owner of a valid and subsisting interest in the land that entitled him to bring the proceedings to confirm, and this was sufficient to give the court jurisdiction. It is true that, at the time Rugg brought this action to confirm his tax title, he had an agreement with Sherwood that he would sell and convey the land so soon as he could procure a decree confirming his title. .But the confirmation of the tax title held by Rugg was in the nature of a condition precedent upon which this contract was based. Sherwood refused to buy until the title was confirmed, and his contract to purchase was on the condition that the tax title should be first confirmed. This contract left Rugg the owner of the land until the confirmation decree was procured; and as it was made in good faith for a legitimate purpose, we do not think this contract deprived the court of jurisdiction to confirm the tax title in an action brought by Rugg for that purpose.

This proceeding to confirm was brought by Rugg in 1892, and the publication was made before the act of March, 1893, but the decree of confirmation was rendered after that act took effect. That act required that the petitioner at the trial should exhibit to the court tax receipts showing the payment of the taxes by petitioner, or those under whom he holds, for at least three successive years next before the publication of the notice to confirm. It also required the petitioner to show by oral or written testimony of witnesses acquainted with the land that there was no one in possession thereof claiming adversely to the petitioner. The act further provided that “there shall be no confirmation of the sale of any lands that are in the actual possession of any person claiming title adverse to the petitioner, nor shall there be any confirmation of th.e sale of lands unless the petitioner, or his grantor, or those under whom he claims title, has paid the taxes on the lands for at least two years after' the expiration of the right of redemption, said payment of taxes to be .three consecutive years immediately prior to the application to confirm.” Kirby’s Digest, § 665. Now, it does not affirmatively appear from the record in the proceeding to confirm, which was read in evidence in this case, that any proof was introduced to show that no one was in possession of the land holding the same adversely to petitioner, or that he had paid the taxes for three years immediately preceding the publication of the notice to confirm.. But the evidence in this case shows that as a fact no one was in possession of the land, and that the plaintiff in the confirmation suit had in fact paid the taxes required. The record in the confirmation suit is silent on those points, though the language of the decree intimates that other papers were read in evidence besides' those named in the decree. The record shows that notice of the confirmation proceedings was published as required by law, and that a petition asking for the confirmation of the tax sale was duly filed. The decree of confirmation then recites that “the case came on to be heard upon the petition, proof of publication, deeds, etc.,” the abbreviation, “etc.” which follows the word “deeds” in the above 'quotation from the decree, tends to show that the case was heard not only on the petition, proof of publication and deeds, but that other papers besides the deeds were read in evidence. What these papers were does not appear. The record is silent; and if we concede that tire filing of affidavits that no one was. in possession of the land and also of copies of tax receipts showing payment of taxes by plaintiff for three years before the petition was filed were jurisdictional, still, as the record does not affirmatively show that they were not filed, but does show that other papers besides deeds were read in evidence, it should be presumed that these other papers were the affidavit and copies of tax receipts which the statute requires to be filed; for this is a collateral'attack on the decree of confirmation, and, as the court which rendered it was a superior court of general jurisdiction, the presumptions are in •favor of its judgment. Scott v. Pleasants, 21 Ark. 364; Boyd v. Roane, 49 Ark. 397; Applegate v. Lexington & Carter County Mining Company, 117 U. S. 269.

On the whole case, we' are of the opinion that the judgment should be affirmed, and it is so ordered.