Schuman v. Sanders , 200 Ark. 540 ( 1940 )

If it were conceded that the redemption of the land had been properly effected, this was, at last, nothing more than the payment of the taxes. The confirmation decree imports the finding that the taxes had not been paid. It could have been rendered upon no other assumption; and if they were paid, that defense should have been interposed in the suit to confirm the tax forfeitures.

In the early case of Wallace v. Brown, 22 Ark. 118,76 Am. Dec. 421, a tax sale had been confirmed where the owner had paid the taxes for which the land forfeited to the State. But it was held that this defense should have been interposed against the rendition of the confirmation decree, and could not be interposed when that decree was collaterally attacked, as is done in the instant case. The opinion in the recent case of Commercial National Bank v. Cole Bldg. Co., ante, p. 212, 138 S.W.2d 794, cites other cases to the same effect. The case of Pattison v. Smith, 94 Ark. 588, 127 S.W. 983, cited in the majority opinion, cites still other cases to the same effect.

In this last-cited case, under a decree rendered upon constructive service, a tract of land was ordered sold for the non-payment of taxes which had been actually paid. The decree was collaterally attacked on that account, but it was held that this could be done only upon the showing that the decree of sale had been procured through fraud practiced upon the court in its procurement. The cases of Williamson v. Mimms, 49 Ark. 336,5 S.W. 320; Doyle v. Martin, 55 Ark. 37, 17 S.W. 346; Burcham v. Terry, 55 Ark. 398, 18 S.W. 458, 29 Am. St. Rep. 42; and Jefferson Land Co. v. Grace, 57 Ark. 423,21 S.W. 877, were cited in support of that holding.

The majority opinion apparently recognized the effect of these cases, but refused to enforce their holding as being inequitable. That question was involved in all those cases. It is never equitable to sell a man's land for taxes where he has paid the taxes. The question whether the taxes were in fact paid is involved in all these confirmation proceedings. If they were paid, that fact is a complete defense to the confirmation suit, and would prevent the rendition of the confirmation decree; but, like any other defense, it must be interposed in the suit where that question is involved and is decided, and not later in another suit where the confirmation decree is collaterally attacked.

For these reasons, in addition to those stated by the Chief Justice, I dissent, and am authorized to say that he concurs in the views here expressed, as does also Mr. Justice Baker.