Wolf & Bailey v. Phillips , 107 Ark. 374 ( 1913 )

Hart, J.,

(after stating the facts). Among other prerequisites to a valid sale of land for taxes is the giving of notice thereof, and when it is shown that such notice has not been given in substantial conformity with the statute the sale will be adjudged invalid, notwithstanding a tax deed in proper form may have been duly executed. Cooley on Taxation, 3 ed., Yol. 2, par. 928; Black on Tax Titles, 2 ed., § 205; Blackwell on Tax Titles, 5 ed., Yol. 1, § 400.

The principal question for our determination is, was the notice of the sale of the land for the non-payment of taxes for 1905 given in the manner required by the statute ?

Lawrence County is divided into two judicial district's. The land was situated in the Western District and the advertisement of sale for the non-payment of taxes was made in a paper published in the Eastern District but which had a bona fide circulation in the Western District. The record shows that the lands in question were advertised in 1906 and that during that year a newspaper was published in the Western District of Lawrence County and had a bona fide circulation therein. The determination of the question depends upon the construction of sections 4923 and 7085 of Kirby’s Digest, and the Act of May 6, 1905 (Acts 1905, page 755). By section 4923 Kirby’s Digest it is provided:

“All advertisements and orders of publication required by law * * * shall be published in some newspaper published and having a bona fide circulation in the county in which the proceedings are had to which such advertisement or publication shall pertain.”

Section 7085 is as follows:

“The clerks of the several counties of this State shall cause the list of the delinquent lands in their respective counties) as corrected by them, to be published weekly for two weeks, between the second Monday in May and the second Monday in June in each year. Such list of delinquent lands shall be published in some newspaper of the county, if any be published therein; if not, in some newspaper published nearest to said county having a circulation in such county. He shall also keep posted up or in or about his office such delinquent list for one year. ”

The Act ápproved May 6, 1905 (Act. 313, p. 755), provides:

“That hereafter the delinquent lands in counties having two judicial districts shall be advertised and sold in the district in which the land lies. ’ ’

The question was raised, but not decided, in the case of Lee Wilson S Company v. Driver, 98 Ark. 337, other questions being decisive of the case. In that case, however, the court did hold that the provisions of the Act were intended for the benefit of taxpayers and owners and are mandatory. It is a settled rule of statutory construction that statutes relating to a subject must be considered as a whole and to get at the meaning of any part thereof we must read it in the light of other provisions relating to the same subject.

By section 7085 of Kirby’s Digest it is provided that the list of delinquent lands shall be published in some newspaper of the county, if any be published therein and, if not, in some newspaper published nearest said county having a circulation in said county. It was the evident and declared purpose of the Legislature by this section to compel the publication of the list of delinquent land in some newspaper printed in the county. To publish the delinquent list in a paper published in another county, but having a bona fi.de circulation in the county in which the land was situated, would not be a compliance' with the statute. When the Act of 1905, above quoted, is read in the light of the previous acts on the subject it is manifest that the purpose and intention of the Legislature was to treat counties having two judicial districts as separate counties so far as the provisions of the Act are concerned. When this is done the Act of May 6,1905, requires that the notice of sale of delinquent lands shall be published in a newspaper printed in the district in which the lands are situated. This construction, we think harmonizes all the provisions of the statute above quoted and referred to.

It follows, therefore, that the tax sale to Homer Sloan was void.

Finally it is insisted by counsel for the defendant that the judgment should not be reversed because the plaintiffs failed to comply with sections 2743 and 2744 of .Kirby’s Digest, which provide in effect that unless the plaintiff in an ejectment suit shall within three days after the filing of the answer file exceptions to any documentary evidence exhibited by the defendant, all objections to such evidence shall be deemed waived. We can not agree with his contention in this respect. The plaintiffs in their complaint alleged that the defendant claimed the land under and by virtue of a pretended purchase of said land made by H. F. Sloan at a tax sale held in the Western District of Lawrence County in 1906 for the nonpayment of taxes of 1905, and that said sale is invalid. Thus it will be seen that the plaintiffs base their right to recover wholly upon the invalidity of this tax sale; and the allegations continued to be a part of the pleadings after the answer was filed. We think then the allegations of the complaint were a substantial compliance with the provisions of the statute just referred to.

The defendant claims under two tax deeds executed to Sloan. One of them was executed on August 25, 1909, and the other on August 29, 1909. The complaint, in this case was filed on August 17, 1911, and summons was issued and served on the same day. It will be seen, therefore, that two years had not elapsed between'the execution of the two tax deeds to Sloan and the commencement of this action. In the case of Harvey v. Douglass, 73 Ark. 221, the court held that the two years statute of limitations under a tax deed contemplates possession under the tax deed and not under the tax certificate. Again in the case of Haggart v. Ranney, 73 Ark. 344. the court held that the two years statute of limitations runs from the date of the tax deeds executed by the clerk.

But it is well settled that the plaintiffs must recover upon the strength of their own title. It is conceded by counsel for plaintiffs that the tax sale to Jesse Gibbons, their grantor, was invalid, and that the tax deeds obtained by him thereunder were void. They claim, however, that even though the tax deed was void, they have obtained title by adverse possession, and that the undisputed evidence shows this fact. We can not agree with them in this contention. The proof in this respect is too indefinite and uncertain, to say, as a matter of law, that the plaintiff’s have acquired title by adverse possession. Besides, additional testimony might be procured on a retrial of the case and, inasmuch as the judgment must be reversed and the cause remanded, we think it the better practice to grant a new trial instead of reversing the judgment and remanding the cause with directions to the lower court to enter a judgment for the plaintiffs. It follows that the judgment must be reversed because the court erred in directing a verdict for the defendant, and the cause will be remanded for a new trial