Wagner v. Arnold , 91 Ark. 95 ( 1909 )

Battle, J.

This suit involves the title to a certain tract of land. The appellant, William A. Wagner, claims it under a deed executed by James R. Berry, Auditor of Public Accounts of the State of Arkansas, on the 21st day of June, 1871, whereby the State conveyed to the appellant all its right, title and interest in and to the land in controversy as a donation, upon condition that he “will regularly and annually pay or cause to be paid the State and county taxes which shall thereafter accrue upon the land.” The appellee, John H. Arnold, claims the land under a sale thereof made on the 8th day of November, 1882, under a decree of the Little River Chancery Court rendered in the exercise of the-jurisdiction vested in it by an act entitled “An act to enforce the payment of overdue taxes,” approved M-arch 12, 1881. The land was sold under the decree to enforce the payment of -the taxes' for the years 1868-69-70-71. Treating the -sale as ordered by the court in the exercise of its jurisdiction and regularly made according to the decree of the court and the law and approved, did. it divest the appellant of the title to the land? The trial court held that it did.

This question has been decided in the affirmative by this court in Williamson v. Mimms, 49 Ark. 336, and McCarter v. Neil, 50 Ark. 188. In those cases the defendants sought to defeat the sales made under decrees of the court in the exercise of the jurisdiction vested in it by the act of March 12, 1881, to pay taxes, by showing that the taxes for which the sales were made liacl been paid -before the institution of the action in which they were ordered sold. This court treated the proceedings instituted under the act of March 12, 1881, as actions in rem, in which all persons interested in the lands affected were concluded by the decrees and orders of the court made and rendered in the exercise of its jurisdiction. The effect of this ruling was to hold that the decrees in those cases estopped or barred persons interested from attacking sales thereunder on account of defenses which they could have set up in the action in rem in which such decrees were rendered. So in this case the appellant is barred from attacking the sale under which appellee claims by his failure to defend in the action in which the sale was made, the court rendering the decree having acquired jurisdiction of the land in that case. McCarter v. Neil, 50 Ark. 191; Clay v. Bilby, 72 Ark. 101, 112. The existence of the facts in that case which this court has held confer jurisdiction has not been questioned; neither has the regularity of the sale in that case been challenged.

Decree affirmed.