Lambert v. Reeves , 194 Ark. 1109 ( 1937 )

MoHaNey, J.

Appellees brought this action against appellant to cancel a tax deed from the state to, appellant, dated June 8, 1936, and to quiet title in them to west half of section 16, township 5 south, range 1 east and south half of northeast quarter section 31, township 4 south, range 2 east, Phillips county, which land was alleged to he their property, and was wild, unimproved and not held adversely by appellant. It was further alleged that there was an attempt to forfeit and sell said lands to the state for the nonpayment of taxes due for the year 1926, and that said forfeiture and sale were and are void for various reasons hereinafter mentioned. Appellant answered denying the various grounds of invalidity set out in the complaint, and, for affirmative defense, pleaded confirmation of the’ sale to the state, under the provisions of act 296 of 1929, on May 28, 1931, and also pleaded the curative provisions of act 142 of 1935.

The case was tried on stipulation of facts, in substance as follows: 1. That appellees were the owners in fee of said lands at the time of the alleged forfeiture and sale for the taxes of 1926, that the lands were wild and unimproved and that no taxes thereon were paid for 1926; 2, that said lands were assessed in 1925 for the taxes of 1926 by assessing all of section 16, 640 acres at a valuation of $6,400, and the iand in section 31, 80 acres at a valuation of $640; 3, that the county clerk delivered the tax books to the collector on January 6, 1927, without extending the taxes on the books in dollars and cents, and in the following form:

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Also that the warrant for the collection of taxes as required by law was attached to the last of three hooks, which was entitled “Real Estate Tax Book, city of Helena,’’ which was not the book in which rural property was described; 4, that the collector failed to file with the clerk as is required by law, a delinquent list showing the amount of taxes delinquent on each description reported delinquent * *' * ; 9, that the lands involved were certified to the state; 10, that the State secured a decree of confirmation to its title under said act 296 of 1929, on May 28, 1931; and 11, on June 8,1936, sold same to appellant.

Based on this stipulation the court entered a decree canceling appellant’s deed from the state and quieting title in appellees,- on the finding “that by reason of the failure of the clerk of Phillips county to extend the taxes against said lands as is provided by law, that the sale of said lands for taxes for the year 1926 to the State Land Commissioner of the state of Arkansas was void for want of power and authority, and that the defendant’s deed from the state of Arkansas to said lands is a cloud on plaintiffs’ title, and that plaintiffs’ title to said land is superior and paramount to any right, claim or interest of the defendant.”

Por a reversal of the judgment, appellant contends, first, that there was no failure in Phillips county to extend the taxes on the tax records against these lands; and second, that if there were a failure to extend the taxes, such failure should be designated as a mere informality or irregularity, which is cured by the confirmation decree under act 296 of 1929, or by the later curative act, No. 142 of 1935. We cannot agree with appellant on either contention. As shown above, the lands .involved were properly described and properly assessed, but there was a total failure on the part of the county clerk to extend in dollars and cents in the columns in the tax-books provided for that purpose, the amount of state tax due on said property, the amount of county tax, the amount of school district tax and the total of all taxes. The only tax extended against said lands was the amount due the Laconia Levee District and the Helena-Ferguson Road District. In this respect, the clerk failed to perform a duty required of him "by law. Section 13758 of Pope’s Digest provides: “The clerk of the county court shall, after receiving statements of the rates and sums of money to be levied for the current year from the Auditor of State, and from such other officers and authorities as shall be legally empowered to determine the rates or amount of taxes to' be levied for the various purposes authorized by law, forthwith determine the sums to be levied upon each tract or lot of real property in his county adding the taxes of any previous year or years that may have been omitted, and upon the amount of personal property, moneys and credits listed in his county in the name of each person, company or corporation, which shall be assessed equally on all real and personal property subject to such taxes.” This section makes it imperative upon the clerk to “determine the sums to be levied upon each tract or lot of real property in his county adding the taxes of any previous year or years that may have been omitted. ’ ’ This would seem to be an unnecessary requirement if it did not mean that he was required to put the sum so found to be due on the tax books for the information of the collector, so that the collector, when any person calls to pay his taxes, may determine the sums due and payable from the books, without having to make the calculations himself. Here, the clerk made no calculations. He failed to determine the sums due upon this property or, if he did, he failed to put said sums upon the tax books. No taxpayer could look at the books himself and determine the amount of taxes that had been assessed against his land, without making the calculations himself, and it is extremely doubtful whether one taxpayer in ten could make the calculations. In Sawyer v. Wilson, 81 Ark. 319, 99 S. W. 389, Judge Battle, speaking for the court, holding the delinquent list sufficient against attack, said: “There is no law prohibiting the blending of all taxes in a delinquent list of lands as published for sale. This is immaterial, and can not affect the owner. The taxes and amount of each charged against the land can be readily ascertained by reference to the tax books.” To support' this statement, the case of Scott v. Watkins, 22 Ark. 556, is cited. In that case, it was said: “The statute does not require the advertisement to state the sums of the state and county taxes severally, though it is perhaps customary to do so. If the advertisement had stated the aggregate amount of taxes due upon the land, with the penalty added, it would have been sufficient, we think, without setting forth what sum was due for state, and what for county taxes.” These cases have reference to the delinquent list and the advertisement of delinquent lands for sale, and not to the extension of the taxes on the tax books by the clerk. Appellees could not have readily ascertained by reference to the tax books what the taxes against their lands were, either for state, county, school district or for the total amount of all taxes thereon. In this respect, the case at bar dansiffers from Ev v. F. L. Dumas Store, Inc., 192 Ark. 571, 93 S. W. (2d) 307, and Alphin v. Banks, 193 Ark. 563, 102 S. W. (2d) 558. In the former case, all of the several amounts of taxes were actually extended against the land including state, county, school district and total, and the same thing is true in the latter case. In that case, the court said: “There is filled in, however, the blanks opposite each tract of land giving its description and area the total state tax due at the rate of 8.7 mills, and the county tax at the rate of 8 mills, and the school tax at the appropriate rate, which, as to the lands here under consideration, was 12 mills, and then the sum total of these taxes. There was a column — which was not filled — for the city taxes; but these lands were not subject to a city tax. In addition to the column showing the assessed valuation there was another column showing the value as equalized, and still another column showing the value as fixed by the county court. ’ ’ It will be seen that in both cases, the taxes were extended as required by law. In both cases, the rate of state tax was 8.7 mills and the rate of county tax was 8 mills, just as in the case at bar. In the Alphin case, it was contended that each separate millage tax for state purposes that went to make up the total of 8.7 mills and each, millage county tax that went to make up the total of 8 mills should have been separately shown on the tax books and not grouped under one head, and it was in answer to this contention that the court correctly used this language: “The objection is made to the failure of the county clerk to extend upon the tax books the amount of taxes to be collected for the various purposes for which the state and county levies were expressly imposed. We do not find any statute which requires this to be done. To impose this requirement would greatly increase the cost of making up a tax book, and would require a book of unwieldly size.” There are many millage taxes levied for state purposes that go to make up the total of 8.7 mills and there are at least two millage taxes levied for county purposes that go to make up the total of 8 mills, for instance, 5 mills for county general purposes and 3 mills for road tax. There is no requirement of law1 that these separate mills be itemized on the tax books and the tax extended for each separate purpose, and it is proper to group all of the state taxes under one heading and all of the county taxes under one heading and it is a sufficient extending of taxes if the amount is thus determined in dollars and cents based upon the assessed valuation, but anything short of this would not be a complete and valid assessment of taxes. The statute referred to above expressly requires it to be done and failure to comply with it results in an invalid assessment of taxes or no assessment át all. As said by Judge Battle in Sawyer v. Wilson, supra, “Lands in this state are assessed in dollars and cents. Taxes are payable only in money or its representative. ’ ’

The result of our views on this point is that there was a total failure in Phillips county, at least as to these lands, to extend the taxes on the tax records.

It is next contended that confirmation under act 296 of 1929 cures the defect in failing to extend the taxes against said lands. We have several times held that a decree of confirmation under said act has the effect of curing all irregularities and informalities in the assessment of taxes and the subsequent sale of delinquent real property in those cases where the state acquired the power to sell. Little Red River Levee District No. 2 v. State, 185 Ark. 1170, 52 S. W. (2d) 46; Stringer v. Conway County Bridge District, 188 Ark. 481, 65 S. W. (2d) 1071; Kirk v. Ellis, 192 Ark. 587, 93 S. W. (2d) 139, and Mixon v. Bell, 190 Ark. 903, 82 S. W. (2d) 33. This point is ruled adversely to appellant’s contention in Mixon v. Bell, supra. In that case, as in this, the tax records of Phillips county were involved. The land was assessed by the assessor, hut the clerk had failed to extend the taxes just as in this. It was there said: “* * * that the record of assessment and extension of taxes in Phillips county, Arkansas, for the year 1923 which was referred to by the defendant, shows no money extensions against any of the lands contained on page 223 where the lands in controversy in this suit is described with reference to state tax, county tax, or district school tax, hut at the top of the page there appears these words: State tax 8 7/10 mills ’ in one column, and in the other column the words 'county tax 8 mills,’ and in another column, ‘district school tax 10 mills’.” Based upon these facts, the. court sajd: "Appellant contends for a reversal of the judgment, because any defects in the state’s title were cured by the confirmation suit brought by the state under act 296 of the Acts of the General Assembly of 1929. The act referred to was construed in the case of Stringer v. Conway County Bridge District, 188 Ark. 481, 65 S. W. (2d) 1071, as curing the state’s title to forfeited lands for informalities and irregularities only connected with the assessment and sale thereof, but where the state was without power to sell lands for failure to pay taxes thereon for any reason, the confirmation decree would not and could not perfect the title in the state. In the instant case, there was no proper extension of the taxes against these lands on the tax record; hence the attempted sale thereof was without power or authority, and the state acquired no title by virtue of the confirmation decree.” The two cases are exactly in point and to hold as appellant contends would require us to overrule this well considered case, which we decline to do.

It is furthermore contended that this is a collateral attack upon the decree of confirmation. Even so, if the confirmation decree is void, in so far as it attempts to confirm a tax sale that is void for the defect above mentioned, then it is open to collateral attack, as a void judgment may be attacked collaterally. Hart v. Wimberly, 173 Ark. 1083, 296 S. W. 39; Bragg v. Thompson, 177 Ark. 870, 9 S. W. (2d) 24.

It is finally said that act 142 of 1935 cures the defect in failing to extend the taxes against this land as required by law. Again we cannot agree that such is the fact. All that act proposes to cure is “any irregularity, informality or omission by any officer in the assessment of said property, the levying of said taxes, the making of the assessor’s or tax book.” The defect was in the failure of the clerk to extend the taxes levied in dollars and cents so that the taxpayer might know how much he owed in money.

We, therefore, hold that said act 142 did not have the effect of curing the defect here involved. Both it and the confirmation decree heretofore referred to did have the effect of curing the other defects mentioned in the agreed statement of facts, as these were mere irregularities or informalities.

The decree of the chancery court is correct, and is in all things affirmed. It is so ordered.

Smith and Mehafey, JJ., concur.