Ferguson v. Fields , 208 Ark. 839 ( 1945 )

This litigation involves the title to lot 9, block 124 of Fitzgerald Addition to the city of Fort Smith, residence property.

The Sebastian Bridge District foreclosed its lien for delinquent assessments against this property for the years 1935-36 and 37, and at the foreclosure sale, the property was struck off and sold to the district on September 13, 1939. On July 31, 1940, appellee, J. Fields, paid to the bridge district the taxes due for the years 1935-36 and 37, in the amount of $28.60, and receipt No. 8500 therefor was issued to him. Thereafter, on September 17, 1940, the district executed its quitclaim deed to Fields to the property, here involved, for the delinquent taxes, penalty and costs, in the amount of $24.98, and this deed was confirmed by the court November 5, 1940. Appellee recorded this deed December 16, 1941.

The instant suit was filed February 11, 1942, against Fields by appellants, in which they claimed ownership and possession of the property that they were not served with summons, had no notice of the foreclosure suit, that the foreclosure proceedings, supra, were void, that the alleged deed from the district to J. Fields was void and of no effect, and prayed that the deed from the district to Fields on September 17, 1940, supra, be canceled and title quieted in them.

Appellees answered, alleged proper service, that appellants' suit was a collateral attack upon a valid and subsisting judgment, and that the court was without jurisdiction. Upon a trial, the court found the issues in favor of appellee. This appeal followed.

The record reflects that the foreclosure decree of the bridge district was had on June 17, 1939, and the sale of the property here in question was had, as above noted, September 13, 1939. Appellants had two years from the date of the sale, September 13, 1939, in which to redeem their property. We so held in the recent case of Hopkins v. Fields, 202 Ark. 890, 154 S.W.2d 22.

The record further reflects that on July 31, 1940, well within the two-year redemption period, appellee, J. Fields, paid to the Sebastian Bridge District, the taxes due the district for the years 1935-36 and 37, and received receipt therefor, and thereafter, on September 17, 1940, the district executed a deed to him for this property.

Appellants argue that, at the time appellee, Fields, paid the taxes due the bridge district, on July 31, 1940, he was a mere volunteer, had no interest of any kind in the property and acquired none by paying these taxes. They also argue that such payment to the district amounted to a redemption, of the property which inured to the benefit of appellants, the owners, and that the deed thereafter from the district to Fields under date of September 17, 1940, was void, since all taxes due the district had been paid.

It is our view that appellants are correct in all of the above contentions.

In the very recent case of Mabrey v. Millman, ante, p. 289, 186 S.W.2d 28, we said: "One who redeems land from a tax sale, when he has no right, title or interest in the land, acquires no title. (Headnote 1) Frank Kendall Lumber Company v. Smith, 87 Ark. 360,112 S.W. 888. ``The redemption deed . . . from the state . . . is in effect a mere payment of taxes . . . and this redemption deed does not purport to convey title.' Pyburn v. Campbell, 158 Ark. 321,250 S.W. 15. Since the proof failed to show any title, by grant or otherwise, in appellees or either of them, and there was no proof of adverse possession by appellees or either of them, so as to confer title, it follows that the trial court erred in its decree," and in Southern Lumber Company v. Arkansas Lumber Company, 176 Ark. 906, 4 S.W.2d 928, this court said: "The record shows that the taxes for 1904 were paid by M. L. Gardner, Jr., who was not in the chain of title, and his payment injured to the benefit of the owner by extinguishing the state's tax lien on the land."

Appellee argues that appellants cannot raise, for the first time here, the above question, which they say was not raised on the trial below. While it does appear that the point that no taxes were due when the deed to Fields was executed was not stressed, it was raised in appellants' brief and was a part of the record proof. Appellants' complaint would, and must, be considered as amended to conform to the proof.

On this question of the payment of the taxes by J. Fields to the district, appellee brought out in the testimony from Mrs. Mabel Patton, secretary of the bridge district, the following testimony: "Mrs. Patton: This (receipt No. 8500) was paid July 31, 1940, by J. Fields, Little Rock, Arkansas, $28.60. Mr. Bland: We offer that receipt in evidence. That is receipt No. 8500? Mrs. Patton: Yes, sir. Mr. Bland: We offer this in evidence. Q. What year was that receipt for? A. 1935, '36 and '37."

Appellants, as indicated, though not arguing and stressing the point, clearly raised this issue in their brief in the following language: "The delinquent taxes were due for the last three years, '35, '36 and '37, and this receipt No. 8500 was issued after 1937, and it was for the '35, '36 and '37 taxes, and 1937 was the last year the taxes were paid in the district. The sale was had in September, 1939. The taxes were paid through the foreclosure procedure and tax receipt No. 8500 would show who paid the taxes and when the taxes were paid. A copy of the tax receipt was introduced showing that the tax was paid July 31, 1940, by J. Fields, of Little Rock, Arkansas, $28.60, R. pp. 35-40."

This point was not stressed, as it was strongly insisted and relied upon, that no summons of process had been had. The court properly, we think, held against this latter contention, but even so, the contention that no taxes were due when the deed to Fields was executed, must be sustained, and there was, therefore, no authority for the execution of the deed to Fields. Fields had no interest in the property when he paid these taxes to the district, and acquired no interest by paying them. He was a volunteer, and his payment, which amounted to a redemption, inured to the benefit of the owners, appellants, and extinguished the district's lien on the property.

For the error indicated, the decree is reversed, and the cause remanded with directions to cancel appellee's deed, and for further proceedings not inconsistent with this opinion.