Cecil v. Tisher and Friend , 206 Ark. 962 ( 1944 )

Holt, J.

These causes were consolidated below for trial, and have been again consolidated for consideration on appeal. January 15,1943, appellee, B. B. Tisher, sued appellant, Belton Cecil, alleging in substance that he (Tisher) was the owner in fee and in actual possession of two tracts of land in Polk county; that appellant, Cecil, claimed title to the land by virtue of tax deeds from the Polk county clerk dated December 30, 1942. Tisher further alleged that the tax deeds were null and void “for the reaspn that the clerk of the county court of Polk county failed to certify at the foot of the list of delinquent lands filed in his office by said tax collector that said list had been published in a newspaper as required by § 13848 of Pope’s Digest of the Statutes of Arkansas; and because said clerk failed to certify the date on which said list was recorded and for the further reason that prior to the execution and delivery of said deeds to the defendant by the clerk as aforesaid, this plaintiff tendered and offered to the plaintiff a refund of all taxes, penalties and costs paid by him in the purchase of said lands and'which tender was by the defendant refused.” He prayed for a cancellation of the tax deeds to Cecil and that the title to the two tracts be confirmed and quieted in appellee.

In his answer, appellant denied that appellee owned the tracts of land in question; admitted that he, appellant, had obtained the clerk’s tax deeds as alleged; that if any tender of taxes, penalties and costs were made, it was not made during the twó-year period following the sale, and denied that appellee had the right to redeem. Appellant further alleged that if the matters and things pleaded by the appellee were true, they did not constitute grounds for cancelling appellant’s deeds, and further pleaded limitation under the provisions of § 13883 of Pope’s Digest as a bar to plaintiff’s action.

Appellant, in a cross-complaint, alleged title through the clerk’s deeds and prayed for denial of the relief asked by appellee and for confirmation of title in appellant.

On March 22,1943, appellee, O. B. Friend, sued appellant, alleging that he was the owner and in possession of a tract of land in Polk county; that appellant claimed title to this land by virtue of a certain tax deed which appellee alleged to be void for the reasons alleged in the Tisher complaint. Appellee’s prayer in this snit was similar to that in the Tisher suit. The same issues are raised in this Friend complaint that are raised in the Tisher suit,- and appellant says in his brief: “The O. B. Friend complaint and the defendant’s answer and cross-complaint raised the same issues.”

Upon a trial, the issues were determined in favor of appellees, and from the decrees these appeals are prosecuted.

At the trial of these causes, it was stipulated: “In the case of B. B. Tisher, Plaintiff, v. Belton Cecil, Defendant, No. 1847, it is stipulated and agreed by and between the parties thereto: that the clerk of the county court of Polk county failed to certify at the foot of the record of the list of lands returned delinquent, his certificate stating in what newspaper said list was published and the date of publication and for what length of time the same was published prior to the day of said tax sale.

“ It is further stipulated that said tax sale was held on the 4th day of November, 1940, and that on the 12th day of April 1943, the clerk of the county court of Polk county who succeeded to said office on January 1, 1943, did attach to the foot of said record of list of lands returned delinquent a typewritten instrument in words and figures as follows:

“Clerk’s certificate, State of Arkansas, county of Polk. I, W. Anders, county clerk of Polk county, Arkansas, do hereby certify that the above and foregoing list of delinquent real estate and notices of sale were duly published in the Mena Star, a weekly newspaper of gen- • eral circulation published at Mena, in Polk county, Arkansas, said publication being for two weeks in succession on the 17th day of October, 1940, and October 24, 1940. Given under my hand and seal this 12th' day of • April, 1943. W. Anders, County Clerk. The same stipulation was filed in the Friend case.”

On the record, it is undisputed that-the clerk’s certificate of publication of the notice of sale was not made prior to the sales of the tracts of land in question. Did the failure of the clerk to attach his certificate at the foot of the record of the list of delinquent lands, stating in what newspaper said notice of delinquent lands was published, and the dates of publication prior to the dates of sale, void the sales here in question*? We think the failure of the clerk to perform this duty as required by § 13848 of Pope’s Digest did avoid these sales, and was a jurisdictional defect.

In Hurst v. Munson, 152 Ark. 313, 238 S. W. 42, this court said: “The attack of appellees and their predecessors in the action on the validity of the tax sale is based, among other things, on the ground that the clerk’s certificate of the publication of the list of delinquent lands was not recorded as required by statute (Crawford & Moses’ Digest, § 10085, now § 13848 of Pope’s Digest) before the day of sale. . . . This court has decided that the certificate required by the statute cited above must be placed of record prior to the day of sale, otherwise the sale is invalid. Logan v. Eastern Arkansas Land Co., 68 Ark. 248, 57 S. W. 798; Hunt v. Gardner, 74 Ark. 583, 86 S. W. 426. We have also held that the clerk’s certificate thus recorded is the sole evidence of the publication of the list. Hunt v. Gardner, supra; Cook v. Ziff Colored Masonic Lodge, 80 Ark. 31, 96 S. W. 618. The record being the sole evidence, the facts cannot be proved by evidence aliunde.”

In Hewett v. Ozark White Lime Company, 120 Ark. 528, 180 S. W. 199, this court said: “Appellee was the owner of the land, and the only question involved is as to the validity of the tax sale, which is attached on the ground . . . because the clerk of the county court failed to make a certificate on the record of the delinquent list, as required by the provisions of § 7086 of Kirby’s Digest (now § 13848 of Pope’s Digest), ‘stating in what newspaper said list was published, and the date of publication, and for what length of time the same was published before the second Monday in June then next ensuing. ’ The tax sale was void . . . This court has repeatedly held that the failure of the clerk to make the certificate provided for in § 7086 of Kirby’s Digest is fatal to the validity of the tax sale. Martin v. Allard, 55 Ark. 218, 17 S. W. 878; Hunt v. Gardner, 74 Ark. 583, 86 S. W. 426.”

This court, in Laughlin v. Fisher, 141 Ark. 629, 218 S. W. 199, said: “The sale is void for another reason. In Hunt v. Gardner, 74 Ark. 583, 86 S. W. 426, it was held that under Kirby’s Digest, § 7086, requiring the county clerk to record the list of delinquent lands with a notice and- a certificate stating in what newspaper said notice was published, the date of publication and for what length of time the same was published, failure of the clerk to record such list with notice and certificate before the day of sale invalidates all sales made by the collector on such day,” and in the more recent case of Hirsch and Schuman v. Dabbs and Mivelaz, 197 Ark. 756, 126 S. W. 2d 116, this court said: “Section 6 of Act 250 amends $ 10085, -Crawford & Moses’ Digest, (now § 13848 of Pope’s Digest). This amendatory section is not found in the published acts of -1933, but is set out in the opinion in the case of Union Bank & Trust Co. v. Horne, 195 Ark. 481, 113 S. W. 2d 1091, except, as there published, there is omitted the last paragraph of that section which reads as follows: ‘ The list of delinquent lands recorded as provided in § 5 hereof shall have attached thereto, by the county clerk, a certificate at the foot of said record, stating in what newspaper said notice of delinquent land sale was published, and the dates of publication, and such record, so certified, shall be evidence of the facts in said list and certificate contained. ’ . . . The effect of this amendatory § 6 is to, make such a record more important than ever; indeed, under this amendatory section, such a record becomes indispensable. . . . The notice for which the act provides refers to the record where the delinquent lands are described, and the last paragraph of this § 6 requires that a certificate be made at the foot of that record stating in what newspaper the notice was published. ... We conclude, therefore, that the requirement of § 10085, Cra'wford & Moses ’ Digest, that the clerk of the county court shall record said list and notice in a book to be kept by him for that purpose, has not been dispensed with, and as that requirement was not complied with, the tax sale was void for that reason. ’ ’

We do not agree with appellant that the case of Union Bank & Trust Co. v. Horne, 195 Ark. 481, 113 S. W. 2d 1091, is controlling here. In that case, we said: “The belated making of the certificate under the conditions stated wherein Act 142 does not apply (on.the day of the sale and not before) adds another, not less fatal thrust at this tax title.” Citing, among other cases, Magness v. Harris, 80 Ark. 583, 98 S. W. 362, and Laughlin v. Fisher, 141 Ark. 629, 218 S. W. 199.

Appellant next argues that the suits of appellees were barred by the statute of limitation, as provided in § 13883 of Pope’s Digest. 'We think this contention is untenable. In construing § 7114 of Kirby’s Digest, which is now § 13883 of Pope’s Digest, this court, in the case of Hewitt v. Ozark White Lime Co., supra, held that the failure of the clerk to make the certificate as to the publication of delinquent lands is fatal to the validity of the tax sale and that the defect is not cured by the two years statute of limitation, and it is there said: “Appellant relies upon § 7114 of Kirby’s Digest, which provides, etc., . . . It has been held that that section does not apply to jurisdictional matters or vital defects in the proceedings relating to a tax sale, but only to irregularities. Radcliffe v. Scruggs, 46 Ark. 96; Taylor v. Van Meter, 53 Ark. 204, 13 S. W. 699; Townsend v. Martin, 55 Ark. 192, 17 S. W. 875. In the case last cited above, the court held that that statute had no reference to a defect in the publication of notice. In subsequent cases the court has construed the statute requiring the. clerk to make certificate of publication as being, for the-.benefit of the landowner so as to provide a definite and certain place' to obtain information whether or not his land is to be sold, and that construction of the statute leads inevitably to the conclusion that the omission to comply with the statute is such a defect that it is not cured by the two years’ statute of limitation prescribed in § 7114 of Kirby’s Digest.”

In Pride v. Gist, 152 Ark. 368, 238 S. W. 35, this court after holding (Headnote 1.) “Crawford & Moses’ Dig., § 10082 (now § 13845 of Pope’s Digest) requiring the collector to file with the clerk ‘by the second Monday in May in each year’ a list of delinquent lands, is mandatory and jurisdictional; and failure to file such list within time renders void the sale for the taxes of that year,” said “It is insisted, however, that the right to recover possession of the land does not follow an adjudication that the tax sale was void, for two reasons. First, that the cause of action is barred under § 10119 of C. & M. Digest (now § 13883 of Pope’s Digest); second, that the cause of action is barred under § 6947, C. & M. Digest (now § 8925 of Pope’s Digest). Section 10119, C. & M. Digest, provides that ‘all actions to test the validity of any proceeding in the appraisement, assessment or levying of taxes upon any land or lot, or part thereof, and all proceedings whereby is sought to be shown any irregularity of any officer, or defect or neglect thereof, having any duty to perform, under the provisions of this chapter, in the assessment, appraisement, levying of taxes or in the sale of lands or lots delinquent for taxes, or proceedings whereby it is sought to avoid any sale under the provisions of this chapter, or irregularity or neglect of any kind by any officer having any duty or thing to perform under the provisions of this chapter, shall be commenced within two years from the date of sale, and not afterward.’ This suit was instituted May 31, 1921, and it is apparent that more than two years had elapsed prior to its institution since the date of the tax sale. It is apparent also that two years and twenty-four days had elapsed between the date of the tax deed and the institution of the suit. ... It has been several times held that § 10119, C. & M. Digest, does not apply to.jurisdictional defects; and we hold herein that the requirement of the statute, that the delinquent list be filed by the second Monday in May, is jurisdictional, it follows that § 10119 has no application to a suit raising that question. Hewett v. Ozark Lime Co., 120 Ark. 528, 180 S. W. 199; Radcliffe v. Scruggs, 46 Ark. 96; Taylor v. Van Meter, 53 Ark. 204, 13 S. W. 699; Townsend v. Martin, 55 Ark. 192, 17 S. W. 875; Ross v. Royal, 77 Ark. 324, 91 S. W. 178.”

The court then held that the cause of action was not barred under § 6947 of C. &' M. Digest (now § 8925 of Pope’s Digest), for the reason that under this latter section, two years actual adverse possession by the holder of the tax deed was necessary to bar the action of the owner of. the original title to recover the land.

In the instant case, it is conceded that the holder of the tax deed has never had possession of the tracts of land in question.

■ Finally appellant contends that appellees have failed to prove title to the tracts of land in question and that in order to prove title it was necessary for appellees “to plead and prove his title from the patent through the mesne conveyances down to himself.”

Appellee, Friend, produced in evidence a warranty deed to the land .in controversy executed to him by Eufus Friend and M. E. Friend on March 18, 1919. Appellee, Tisher, introduced in evidence a deed executed to him by C. 0. Ward on January 7, 1940. Both deeds were recorded. Both of the appellees testified that they were the owners and in possession of the tracts of land involved and appellant offered no evidence to the contrary save the tax deeds on which he based his claims. We think this evidence sufficient to meet the final contention of the appellant.

In McMillen v. East Arkansas Investment Co., 196 Ark. 367, 117 S. W. 2d 724, this court said: “It is true that . . . appellants did not deraign their title in their complaint or refer to a deed or other muniments of title, but they did allege ownership of the land and introduced proof to sustain the allegation. ... In this character of suit we think all that is necessary to be alleged in the complaint is ownership and proof of ownership is all that is required to sustain the allegation. It was not necessary to set out in the complaint appellant’s muniments of title or to make profert of them in the evidence. ’ ’

Finding no error,-the decree in each case is affirmed.