Moses v. Gingles

Appellant was the owner of the south half of the northeast quarter and the northeast quarter of the southeast quarter of section 26, township 1 south, range 13 west, Saline county. He failed to pay the taxes thereon for 1938 in 1939 and it was forfeited and sold to the State. Not having been redeemed within two years, it was certified to the State, and thereafter sold to the appellee on February 18, 1942. The State sought to confirm its title to this and other lands by suit for this purpose. Appellant intervened in that suit claiming title to the south half of the northeast quarter on May 17, 1943, and made appellee a party to said intervention, alleging a number of grounds of invalidity of said tax forfeiture and sale to the State and of the State's deed to appellee. On May 17, 1943, a decree of confirmation was taken as to the northeast quarter of the southeast quarter, but not as to the south half of the northeast quarter, claimed in appellant's intervention. Appellant filed two amendments to his intervention, one on the day of trial, in which he alleged that he was also the owner of the northeast quarter of the southeast quarter of said section, township and range, having acquired same at the same time he acquired that described in his original suit, and that the forfeiture and sale thereof to the State were likewise void for a number of reasons. The two reasons relied on below and here are; 1, excessive costs in the sale of the land, and 2, indefinite and ambiguous extensions of taxes made by the county clerk. Appellee denied appellant's ownership of said lands and the invalidity of the forfeiture and sale to the State, and asserted his ownership thereof by virtue of his deed from the State. Trial resulted in a decree in appellee's favor, from which is this appeal.

We find it necessary to discuss only the first reason relied on by appellant, — excessive costs in the sale of the land.

The land was described on the tax books as southeast northeast, the southwest northeast and the northeast southeast, section 26, township 1, range 13 on three separate lines, and all listed in the name of John E. Sanders. It was returned by the collector as delinquent and was described on the delinquent list and advertised in the newspaper with other delinquent lands in the same way. Included in the costs for which said lands were sold was an advertising charge of 25 cents for each 40-acre tract separately described as above, or a total of 75 cents, whereas, appellant contends, said descriptions should have been grouped together as one tract of 120 acres of contiguous land, under the same individual ownership, for which an advertising charge of only 25 cents is permitted under the provisions of Act 170 of 1935.

Section 1 of said Act 170 requires the collector to file with the county clerk, by November 1, each year, a list of delinquent taxes on real estate, describing same as described on the tax books, and requires certain duties of said clerks with reference to said list. Section 2 requires the clerk to publish such delinquent list, as corrected by him, with this proviso: "Provided that within any section, a section, quarter section, eighty acres or less contiguous acreage owned by one person shall be listed and published as one tract. All contiguous city lots in any city block owned by one person shall be listed and published under one item and as one tract." Section 9 provides: "The legal fees for the publication of delinquent real property shall be twenty-five cents per tract. . . ."

Obviously the reason the Legislature requires the county clerks to list contiguous tracts in any section, which are shown to be owned by one person, as one tract for publication, is to save costs of publication. The requirement is mandatory whatever the reason for its enactment, and these provisions were not repealed by Act 282 of 1935. Thomas v. Branch, 202 Ark. 338, 150 S.W.2d 738. In fact, Act 170 of 1935 was the only authority for the publication of the delinquent land list and the legal fee for publication is 25 cents per tract as fixed by 9, and the term "tract" as there used means a tract as limited by the proviso in 2. It necessarily follows that there was an excessive charge here of 50 cents for failure of the clerk to list the three contiguous calls under one ownership as one tract.

Where land is sold at a tax sale for an illegal charge or excessive costs, the sale is void and not cured by confirmation. Lumsden v. Erstine, 205 Ark. 1004, 172 S.W.2d 409, 147 A.L.R. 1132; McCarson v. Hankins, 207 Ark. 294,180 S.W.2d 830; Plant v. Johnston, ante p. 217,185 S.W.2d 711.

The decree is accordingly reversed and the cause remanded with directions to enter a decree not inconsistent with this opinion.

GRIFFIN SMITH, CJ., concurs.