Cabell v. Board of Improvement of Improvement District No. 10 , 124 Ark. 278 ( 1916 )

Hart, J.,

(after stating the facts). It is contended by counsel for appellants that the decree was procured by fraud because the complaint in the statutory proceeding to collect the delinquent assessments alleged that the owners of the lots in controversy were unknown when it was well known to the commissioners that appellants were the owners of the lots. This contention was settled adversely to appellants in the case of Cassady v Norris, 118 Ark. 449, 177 S. W. 10. There Cassady, who was a non-resident of the State of Arkansas, owned property-in Mena, Arkansas. His property was placed in an improvement district but he had no knowledge of that fact and on that account did not pay any assessments against it. A complaint was filed against the unknown owners of lots on which the special assessments had not been paid. Cassady\s lot was included in the complaint and the same was proceeded against as the land of an unknown owner. It was sold and Norris became the purchaser of it. He waited until the time for redemption had expired before notifying Cassady of his purchase. In this case the facts are in all essential respects the same, and have been stated and need not be repeated. In regard to a precisely similar contention in the case of Cassady v. Norris, the court said:

“But these allegations were not sufficient to constitute a fraud practiced by the successful party in obtaining the judgment. The allegation in the complaint, in the suit to condemn, that the owner was unknown was sufficient to give the court jurisdiction to proceed against the property. It was not a fraud on the court to make this allegation, although it was untrue; for the court had the'power to inquire into its jurisdiction and to determine whether or not it was true. The recitals of the decree condemning the lot in controversy to he sold were, in effect, that the owners of the lots were designated as unknown, and that they were unknown to the board of improvement. We must presume, in the face of these allegations, that the court did make inquiry as to its jurisdiction to proceed against the property, and found that it had jurisdiction. In other words, that the complaint alleged that the owners of the lots were unknown, and that such was the'fact.”

(1) The court held that, since a decree of sale of real estate for non-payment of taxes may be impeached for fraud only where such fraud is extrinsic of the matter tried in the cause, such decree may not be set aside because the owner of the lot was proceeded against as an unknown owner, when in fact he was known to the plaintiff.

Counsel for appellants have" asked us to overrule Cassady v. Norris, upon the authority of the following cases from the State of Texas: Hollywood v. Wellhausen, 68 S. W. 329; Sellers v. Simpson, 115 S. W. 888; Wren v. Scales, 119 S. W. 879 (affirmed by the Supreme Court), and opinion reported in 127 S. W. 164. In Hollywood v. Wallhausen, the court avoided the sale where the owner was sued as an “unknown owner,” saying:

“ * * * Appellants were in possession of the land when the suit for taxes was instituted, and had been for ten years; and the State of Texas was charged with knowledge of -such possession, and the officers representing the State had no basis for the affidavit that the owner was unknown. If no one had been in possession of the land, the judgment against the unknown owner might bind the owner, but we can not subscribe to the doctrine that a man in possession of his homestead can be deprived of his title by a suit against an unknown owner. If the rule should prevail that a man occupying a homestead can be dispossessed of the same through a suit against an unknown owner, of which he had no actual notice, no citizen could feel secure in the title to his property.”

These decisions were not before us when we decided the case of Cassady v. Norris, but the principles decided in them were fully considered and discussed by the court in that case. The majority of the court think that the principles decided in Cassady v. Norris are sound and adhere to‘the opinion for the reasons expressed therein. It is not necessary to repeat the reasoning of the court here. Mr. Justice Smith and myself thought the opinion in Cassady v. Norris was unsound at the time it was written, and dissented. We have not changed our opinion and, because we did not express in writing our dissent in that case, it may not be amiss if we should briefly express our views here.

The principles governing the sale of land for taxes are clearly stated in Cooley on Taxation, volume 2, 3d. ed., page 912, as follows: “Tax sales are made exclusively under a statutory power. The officer who makes them, sells something he does not own, and which he can have no authority to sell, except as he is made the agent of the law for the purpose. But he is made such agent only by certain steps which are to precede his action, and which, under the law, are conditions to his authority. If these fail, the power is never created. If one of them fails, it is as fatal as if all failed. Defects in the conditions to a statutory authority can not be aided by the courts; if they have not been observed, the courts can not dispense with them, and thus bring into existence a power which the statute only permits when the conditions have been fully ■ complied with. Neither, as a general rule, can the courts aid the defective execution of a statutory power; they may do this when the power has been created by the owner himself, and when such action would presumptively be in furtherance of his purpose in creating it; but a statutory power must be executed according to the statutory directions; and, presumptively, any other execution is opposed to the legislative will, instead of in furtherance of it. It is, therefore, accepted as an axiom when tax sales are under consideration, that a fundamental condition to their validity is that there should have been a substantial compliance with the law, in all the proceedings of which the sale was the culmination. This would be the general rule in all cases in which a man is to be divested of his freehold by adversary proceedings ; special reasons make it peculiarly applicable to the case of tax sales. ’ ’

Our statutes on improvement districts provide that the board may file a complaint in equity for. the sale of delinquent property for the payment of assessments, penalties, and costs of suit. The statute provides that such suits may be brought against one or more owners; it provides that the owner of the property assessed shall be made a defendant, if kno wn; if he is not known, that fact shall be stated in the complaint, and the suit shall proceed as a proceeding in rem against the property assessed. Kirby’s Digest, § § 5691-96. This court has repeatedly held that possession or occupation is sufficient to put on inquiry every person seeking an adversary interest in the property and is, therefore, constructive notice of such title as the possessor or occupant has. Hamilton v. Fowlkes, 16 Ark. 340; Hughes Bros. v. Redus, 90 Ark. 149, and cases cited. The ordinance creating an improvement district definitely defines its boundaries. It is usually only a part of a city or town. So when the owner or his tenant is in the actual possession of the property, the board of commissioners and its attorneys are without excuse in stating that the owner is not known. In the State of Alabama there is a statute requiring the assessor to make out a complete list of all the land in his county subject to taxation and set opposite each division or subdivision of section, the name of the reputed owner thereof; and when the owner is not known, these words, “owner unknown.” In the ease of Oliver v. Robinson, 58 Ala. 46, the court said: “It is manifest that proper inquiry and search were not made, to ascertain who was the owner of these lands. Lands can not he lawfully assessed to ‘owner unknown,’ when the owner is known; and if the assessor or collector, who makes assessments, has, at the time, the means of ascertaining who the owner is — such as open possession by the owner — this is equivalent to actual knowledge, and will avoid a sale made under such assessment.”

(2) Even if it be held that this is a collateral attack and that every question that could have been determined in the foreclosure case is presumed to have been determined in the former judgment, and has become res adjudicata, still we think the conclusion of the majority of the court is wrong. Section 4431 of Kirby’s Digest provides that the court in which a judgment has been rendered shall have power after the expiration of the term, to vacate it, among other things, for fraud practiced by the successful party in obtaining the judgment. It is true we have repeatedly held that the fraud which entitles a party to impeach a judgment must not consist of any false or fraudulent act or testimony, the truth of which was or might have 'been in issue in the proceeding before the court which resulted in the judgment that is thus assailed; but that it must be a fraud practiced upon the court in the procurement of the judgment. Bank of Pine Bluff v. Levi, 90 Ark. 166, and cases cited.

In the application of this rule in the case of Moore v. Price, 101 Ark. 142, the court held that where the sheriff made a false return of service, and a decree was had on such return, reciting service, the record and return may be impeached on the petition to set aside the decree for want of service and notice. So, too, in Corney v. Corney, 79 Ark. 289, a decree of divorce was set aside. •Under our statutes suits for divorce must be brought in the county where the plaintiff resides. In that case the plaintiff, for the purpose of procuring the issuance of a warning order, made affidavit that his wife was not a resident of the State of Arkansas, when he knew that she was in the .State, and he fraudulently induced her to leave the State immediately* thereafter, without disclosing his purpose of suing for a divorce. The court vacated the decree on the ground of fraud in its procurement. In the present case, the known owner is entitled to his day in court and to be heard in defense of his rights. The owners were in possession of their lands by their tenants and under such circumstances for the commissioners or their attorneys to state in the complaint that the owners were unknown was to practice a fraud upon the •court in the very act of obtaining the judgment itself. Their conduct deceived or misled the court-as to a material fact and constituted an abuse of the process of the court which resulted in the rendition of a judgment which would not have been given if the conduct of the whole of the case had been fair.

As we have already stated, however, the majority of the court is of the opinion that the decision in Cassady v. Norris is sound and adhere to it, both on that account and because it has become a rule of property. Therefore, the decision in that case has become the settled law of this State.

(3) It is earnestly insisted by counsel for appellants that the sale should be set aside because the attorneys for the board of commissioners bid the property in at the sale. In this contention a majority of the court agree with counsel. In the case of Roger v. Witham, 56 Wash. 190, 105 Pac. 628, 21 A. & E. Ann. Cas. 272, the Supreme Court of the State of Washington, in discussing a similar principle, held: “A city attorney who becomes a purchaser at a foreclosure sale for the non-payment of a special assessment owes to the city and to the owner of the property á duty to exercise due care in locating the owner and to pursue such sources of inquiry as are open to him leading to the means of giving notice to the owner, and where the city attorney violates this duty the sale may be avoided at the suit'of the injured party.”

There, as here, counsel sought to uphold the sale upon the well known rule that any person can purchase at a judicial sale who has no duty to perform in reference thereto inconsistent with the character of a purchaser. The court held, however, that in that case the attorney was confronted with a two-fold duty, with a duty to the city and a duty to the owner. The court indorsed, the utterance of this court in speaking of the right of an attorney for an administrator to purchase at his own sale. In West v. Waddill, 33 Ark. 575, the court said:

“The doctrine has been extended to all persons intrusted with the management and direction of sales, in such manner as to impose upon them the duty of taking care that the property may be sold to the best advantage for all concerned. They can not purchase at all, however fair their intentions. As purchasers their interests would conflict with their duties, and the courts of equity regarding the weakness of ordinary men, takes from them all temptations by rendering them incapable of purchasing at all.”'

We think the principles announced in that case apply with equal force here. In Fitzgerald v. Walker, 55 Ark. 148, in discussing the power of improvement districts, the court said that its powers are derived directly from the legislature and in exercising them the board acts as the agent of the property owners whose interests are affected by the duties it performs. In Davis v. Gaines, 48 Ark. 370, the court said, that the board is a distinct agency for accomplishing the purposes of the statute. It is true that in foreclosure suits to collect delinquent assessments, the actual sale is made by a commissioner appointed by the court for that purpose; but it by no means follows that the board of commissioners and its attorney have no duties to perform relating thereto. As we have already seen, section 5694 provides that the owner of the property assessed shall be made a defendant if known, if he is not known, that fact shall he stated in the complaint, and the suit shall proceed as a proceeding in rem against the property assessed. The property owner is entitled to his day in court. The duty then devolves upon the board and its attorney to ascertain who owns the property. Under the decision of the majority of the court the question of whether the owner of the property is known becomes res- adjudicada when it has been passed upon by the chancellor in- the foreclosure sale. The act requires that the owner be made a party if kno wn and if he is not known, that fact shall -be stated in the complaint. So the act imposes a very delicate and very important duty upon the board and its officers. The means of effectuating a wrongful purpose are very simple and would readily suggest themselves to any one who desired to profit thereby. At least the board would be exposed to the temptation of a dereliction of duty in order that its members and attorney might earn a profit by purchasing at the sale. Hence, it will be seen that a very important trust has been imposed upon the board by the Legislature in the accomplishment of the purposes of the statute. Hardly any public agency exists which possesses to an equal extent the powder of wrong-doing. It is true no wrong motive or intentional wrong-doing can be imputed to the purchasers in the present case because they asked the chancellor if it would be proper for them to purchase at the sale, and received his assent thereto before they became purchasers.

The policy of the law, however, must -be preserved in all eases in order to effectuate its beneficial purposes. As said in Clute v. Barron, 2 Mich. 192, “This object can be best effected by declaring their incapacity to become purchasers at tax sales; and by treating as void any purchase made by them, or 'by any person for them; or, in the language of Mr. Justice Story, to treat all such sales as if there had been no sale, and the ownership of the property as never having been legally divested. This is the only remedy for the mischief; this is striking at the root of the evil.”

It is true this language was used in regard to a sale under the statute by the county treasurer for the nonpayment of taxes, but if we are correct in holding that the statute contemplates that the board and its attorneys have duties to perform relative to the sale, the language quoted applies with equal force here.

Therefore, the decree in this case will be reversed and the cause remanded with directions to the chancellor to render a decree in accordance with the prayer of the complaint, and not inconsistent with this opinion.