Isaack v. Davis , 254 Ark. 115 ( 1973 )

Conley Byrd, Justice.

This appeal involves the validity of a foreclosure proceeding by The Miller County Improvement and Drainage District. The land involved is 22.5 acres lying north of Dooley Ferry Road in the E'A SEM of Sec. 1, T 15 S, R 27 W. Appellees Cain and Carrie Mae Davis have been the record owners since 1948, and the land has always been assessed and the ad valorem taxes paid in their names. The improvement district was formed in 1956. Appellant Floyd Isaack had bought the land at Sheriff’s sales for delinquent ad valorem taxes but the appellees, nonresidents, always redeemed them. When the Improvement District’s assessment books were prepared, the supposed owner of the 22.5 acre tract was shown to be “Smith.” Admittedly, nobody by the name of Smith has ever owned the lands involved. The constructive notice by newspaper publication in the foreclosure suit was as follows:

DESCRIPTION OF TAXES AND NAME LAND PENALTY COSTS

Miller, County, Ark. 1963 1964 1965 $

Tax Tax Tax

Smith Wá m SEH Pen. Pen. Pen.

North of Road, Sec.

1, T 15 S, R 27 W 3.50 .88 3.50 .88 .20

On December 22, 1966, pursuant to a foreclosure decree upon the above constructive service of process, the lands were sold to appellant for Ten Dollars. After the time for redemption ran out, a deed was issued to appellant.

At the trial it appeared that appellant had paid the improvement district assessments for 1962,. .and probably 1963. Appellees testified that they did not know that their lands were in the improvement district.

For reversal of the trial court’s decree holding the constructive service invalid, appellant relies upon Ark. Stat. Ann. § 21-546, § 21-547 (Repl. 1968), and our holding in Leonard v. Thompson, 228 Ark. 136, 306 S.W. 2d 869 (1957).

Section 21-546 provides for a foreclosure of delinquent improvement district assessments in chancery court and provides that: “Said proceedings and judgment shall be in the nature of proceedings in rem, and it shall be immaterial that the ownership of the said lands be incorrectly alleged in said proceedings, and such judgment shall be enforced wholly against such lands. ...” However a subsequent provision specifically provides that the newspaper publication shall contain a list of supposed owners together with a descriptive list of the delinquent lands.

Section 21-547 provides that neither attorneys’ ad litem nor guardian ad litems shall be required and “. . . provided, that no informality or irregularity in holding any of the meetings provided for herein, or valuation, or assessment of the lands, or in the name of the owners, or the number of acres therein, shall be a valid defense to such action. . . ”

Arkansas Statutes § 20-1124 (Repl. 1968), requires the collector to make out a list of delinquent improvement district assessments on or before October 15th of each year, "... which list shall include the name of the supposed owner as the same appears on the tax books, a description of the property and the amount of the tax due thereon. . . .” Ark. Stat. Ann. § 20-1128 (Repl. 1968), provides that a certified copy of such list shall be filed with the complaint when the improvement district files its action to foreclose the delinquent assessments.

Based upon the foregoing statutes in Leonard v. Thompson, supra, we upheld the validity of an improvement district sale in the name of the supposed owner as shown by the ad valorem tax books because Thompson had failed to record his deed and assess his taxes as required by Ark. Stat. Ann. § 84-414. Had he so assessed his lands, he would have been shown on the assessment books as the supposed owner. We followed the same rule in Sadler v. Hill, 243 Ark. 247, 419 S.W. 2d 298 (1967).

The appellees on the other hand seek to uphold the trial court’s decree on the authority of Simpson v. Reinman, 146 Ark. 417, 227 S.W. 15 (1920). In that case we held, under the statute there involved, that a constructive notice in the name of the supposed owner was insufficient when the actual owner was in possession and could easily have been identified. We need not go so far in this instance. As we understand the theory of constructive service by publication, its aim is to give the true owner possession of such facts as will lead to actual notice. To better effectuate that purpose Ark. Stat. Ann. § 21-546 (Repl. 1968), properly requires that such notice list the “supposed owner’’ of the lands. When the true owner properly complies with the tax laws (Ark. Stat. Ann. § 84-414) his name is placed on the ad valorem tax books as the “supposed owner” and in preparing the delinquent assessments the collector has the information to prepare the delinquent list that is to be attached to the foreclosure complaint.

Other courts in considering the validity of constructive service where the name of the “supposed owner” is involved have upheld the validity thereof where the name of the “supposed owner” when coupled with the description of the real estate is not misleading. See Grannis v. Ordean, 234 U.S. 385, 34 S. Ct. 779, 58 L. ed. 1363 (1914). In doing so however, it points out that the general rule in cases of constructive service of process by publication tends to strictness in interpretation of the statutes to assure notice.

When we consider that no person by the name of Smith ever owned the lands of appellees; that appellees only owned a part of EVi of SEM; and that they had a neighboring owner by the name of Smith, we cannot say that the publication in question was not misleading. Consequently, we agree with the trial court that the foreclosure decree was void for lack of notice. To interpret Ark. Stat. Ann. 8 21-546 (Repl. 1968) as making the name of the supposed owner wholly immaterial, when the same section requires the name of the supposed owner to be shown, could raise serious questions as to constitutional due process. It’s an axiom of statutory construction that in the construction of laws that construction will be adopted which makes the law valid. Furthermore, it takes but little effort to determine the supposed owner of the property as shown by the ad valorem tax records.

Affirmed.

George Rose Smith, Fogleman, and Jones, JJ., dissent.