DocketNumber: 4-7023
Judges: Holt, Carter
Filed Date: 3/22/1943
Status: Precedential
Modified Date: 10/19/2024
Appellee, Ruth Scherer, and her sister, Fannie Scherer Sanders, who were the owners of the east 60 feet of lot 11, block 30, town of Texarkana, Arkansas, on March 14, 1931, sold and conveyed, by warranty deed, to the city of Texarkana, Arkansas, approximately nine feet off the west frontage of lot 11, which left the title and ownership to the remaining east 51.1 feet of lot 11, block 30, town of Texarkana, in appellee *Page 555 and her sister, Fannie Sanders. Subsequently, appellee acquired the interest of her sister in this property. After the sale of part of lot 11 to the city of Texarkana the property was carried on the tax books and assessed under the first description, supra; that is, "east 60 feet, lot 11, block 30, town of Texarkana, Arkansas," and under this description was sold to the state on November 2, 1936, for the 1935 taxes. Title was confirmed in the state September 25, 1939, under act 119 of 1935, and thereafter, on June 11, 1941, appellant purchased the property from the state, securing Land Commissioner's deed, under the description "east 60 feet of lot 11, block 30 of the original city of Texarkana, Arkansas," for a recited consideration of $365.68.
Appellant brought suit in ejectment, alleging ownership and right to possession of the property in question. Appellee answered, filed cross-complaint and moved to transfer to equity. The motion to transfer to equity was granted; whereupon, appellant filed motion to remand to the circuit court, and thereafter filed answer to appellee's cross-complaint.
Appellee's answer and cross-complaint, and amendment thereto, denied the allegations of appellant's complaint, alleged that the tax assessment, forfeiture and sale of appellee's property were void for lack of power in the state to sell on several grounds, among them being "that the west portion of said lot 11, block 30 of said town of Texarkana, Arkansas, had theretofore been condemned and owned by the city of Texarkana, Arkansas, for street purposes; that said portion of lot 11, block 30 was not subject to taxation by state of Arkansas for 1935 taxes; that the description of plaintiff's property as east 60 feet of said lot 11, the levy of an assessment and sale thereof were void for indefinite description, and for the further reason that said levy and sale of said defendant's east 51 feet for various assessments against the east 60 feet of said lot 11, block 30, nine feet of which was not subject to taxation and sale, resulted in a levy and sale of plaintiff's property for an illegal sum of money, and was beyond the power of the state and its officers, and, therefore, void for want of power." *Page 556
Upon a trial of the cause, the court determined all issues in favor of appellee, and there was a decree accordingly. This appeal followed.
For reversal appellant earnestly contends that the court was without jurisdiction and that this is the primary question presented here. We think, however, that this contention is untenable for two reasons. In the first place the record discloses that after appellant filed his motion to remand to the law court he pursued this motion no further. The court was not asked to rule on this motion and made no order on this motion. Subsequently appellant filed answer to appellee's cross-complaint. Appellant, therefore, waived his emotion to remand and in effect, consented to trial in equity. See Schuman v. Sanders,
In the McClintock case it is said: "McClintock did not ask or obtain a ruling upon his motion to dismiss the appeal, but, on the other hand, went to trial in the circuit court on the merits of the case. Under our system of pleading he will be deemed to have waived a ruling on his motion to dismiss the appeal and to have consented to the jurisdiction of the circuit court to try the case," and in Pratt v. Frazer this court held (quoting headnote 3): "The right to have a suit in equity transferred to the circuit court is waived by voluntarily submitting to trial of all the issues by the chancery court." *Page 557
Aside, however, from the fact that appellant waived his alleged right to remand by not pressing his motion to remand to a decision, we think the motion was not well taken for the reason that it is clear that the chancery court did have jurisdiction. The very purpose of appellee's answer and cross-complaint was to have the confirmation decree, as it affected the property involved here, declared invalid and set aside, and this relief could only be given by a court of equity.
Appellee's attack on the validity of appellant's tax deed from the state of Arkansas is collateral, and to be successful the burden was upon her to show lack of power in the state to sell the property in question.
It is undisputed that appellee's property, in question here, was carried on the tax books, and assessed, as "the east 60 feet of lot 11, block 30, town of Texarkana, Arkansas," when in fact appellee only owned the east 51.1 feet of lot 30, block 11, town of Texarkana, Arkansas. She was assessed, therefore, on more property than was subject to taxation, the title of nine feet of the assessed property being in the city of Texarkana since 1931, and not subject to taxation. In other words, she was assessed and taxed on the basis of ownership of 60 feet when she owned only 51.1 feet of lot 11. This, we think, is clearly an illegal and void assessment, and the taxing officers were unauthorized to sell, and lacked the power to sell property for taxes which were not chargeable against it. In Vandergrift v. Lowery,
Article 16, 5 of our Constitution provides: "All property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the state. No one species *Page 558 of property from which a tax may be collected shall be taxed higher than another species of property of equal value, . . ." and 11 provides: "No tax shall be levied except in pursuance of law, . . ."
In the very recent case of Powell v. Coggins,
We think the principles of law and reasoning announced in the Powell-Coggins case apply with equal force here. The forfeiture and sale of appellee's property as the east 60 feet, lot 11, when the city of Texarkana had owned the west nine feet of said east 60 feet of lot 11 since 1931, which nine feet was not subject to taxation, were void for lack of power in the state to sell. Accordingly, the decree is affirmed.
CARTER, J., disqualified and not participating.