Union Investment Co. v. Hunt

McHaney, J. Appellee is the owner of the southeast quarter of section 10, township 2 south, range 5 west, Arkansas County, which is included in Big Island Drainage District No. 8. The district was organized under the general drainage district laws known as the alternative drainage district .system. M. Beck formerly owned the land above described, but, after his death, which occurred prior to January 1,1918, Ms heirs conveyed same to appellee on January 20, 1920, and the latter has been in the actual possession thereof since that time, cultivating it as a rice farm. The 1920 drainage district taxes on this and other lands were not paid and were returned delinquent. Thereafter, on December 4, 1925, said district brought suit in the chancery court to foreclose its lien against the delinquent lands, including the lands in controversy, correctly describing them in the complaint. Notice of the pendency of the suit was given by publication in a newspaper, and on January 5, 1926, decree was returned condemning* the land to be sold for the taxes, penalty and cost against it, and thereafter same was sold to the district, the sale confirmed, and a certificate of purchase issued to the district. This certificate was later assigned to appellant, and on April 15,1931, on the surrender of the certificate to the commissioner in chancery, a deed was executed and delivered to appellant and approved by the court. After appellee’s purchase of said land he paid all the drainage taxes accruing against it for 1921 and subsequent years. It is agreed that the 1920 tax, the one for which the sale was made, amounting to $27.40, was not paid, and that there has been no redemption from the commissioner’s sale unless the later payments made by appellee and accepted by the district may be held to be a redemption. In the decree condemning said land to sale for the delinquent taxes for the year 1920, this finding is made: “That due and proper service has been had upon all of the owners of the said lands and real estate hereinafter described by means and reason of the publication of a notice of the pendency and purpose of said suit as is required by law, which notice was published for four consecutive weeMy issues in the Stuttgart Arkansawyer, a newspaper of bona fide circulation in the northern district of Arkansas County, therein describing said lands and real estate,” etc. Said decree then continues: “Whereupon said cause is submitted to the court upon plaintiff’s complaint, the proof of publication of the notice aforesaid, ” etc. Appellee brought this action to cancel and set aside the sale of said land for taxes and the deed issued to appellant by the commissioner making the sale. On a trial of the case on an agreed statement of facts the court found for appellee and entered a decree canceling and setting aside its former decree condemning the. above-described land for sale, canceling and holding for naught said sale, and canceling the deed issued to appellant. A lien was declared upon said land in favor of appellant in the sum of $27.40. In the agreed statement of facts is the following: “It is agreed that the notice attached to the complaint as Exhibit C is a correct copy of a notice appearing in the files of said cause. It is likewise agreed that the record shows that a proof of publication was filed in said cause, and that the copy of proof of publication attached to plaintiff’s amended complaint as Exhibit C-2 is a correct copy of the same. It is also agreed that the list of lands named in said proof of publication is the same as that contained in the notice aforesaid, and that the lands here involved are not mentioned nor described in either said notice or said proof of publication.” Several interesting questions are discussed by able counsel for both parties. We find it unnecessary to discuss but one of them. It is undisputed that the notice published in the Stuttgart Arkansawyer, proof of publication of which was found among the papers on file in the case, failed to include the above-described land, and it is conceded that this suit is a collateral attack on the decree of the chancery court of January 5, 1926, condemning said land to sale for the unpaid drainage district taxes. It is earnestly insisted by appellant that the finding in said decree that notice had been given for the time and in the manner prescribed by law is conclusive as to the jurisdiction of the court, and that no extrinsic evidence is competent to contradict it on collateral attack. Section 6239, Crawford & Moses’ Digest, provides: “In all cases where it appears, from a recital in the records of any such court, that such notice has been given, it shall be evidence of such fact.” It has been many times held that in determining whether a domestic judgment, collaterally attacked, is void for want of notice, it must be done by the court on an inspection of the record only. Boyd v. Roane, 49 Ark. 397, 5 S. W. 704; McDonald v. Ft. Smith & W. R. Co., 105 Ark. 5, 150 S. W. 135. In the latter case it was said: “In a case seeking to impeach collaterally a domestic judgment, the question as to whether or not process has been served in the manner prescribed by law, upon the. parties defendant therein is tried alone by an inspection of the record, and the verity of such record cannot be assailed by parol evidence. ’ ’ The reason for the rule is that judgments and decrees ought to and do import verity and stability, and, as said in Boyd v. Roane, supra: “It is generally thought to be better that the doctrine that the record importing absolute verity should work an occasional hardship than that public confidence should be shaken in the stability of judicial proceedings by suffering them to be lightly overturned; and for this reason the weight of authority in the case of a domestic judgment collaterally attacked is that the question of notice or no notice must be tried by the court upon an inspection of the record only.” On the other hand, as has been frequently held, if the record contradicts the finding of service or notice in the decree, the record stultifies itself, and the decree is overcome. In § 273, Black on Judgments, it is said: “But while it is inadmissible to contradict the record by extrinsic evidence, it is always open to the party to show that one part of the record contradicts another part. Thus the recital of service in a judgment may be contradicted by producing the original summons and the return. See also State ex rel. Atty. Gen. v. Wilson, 181 Ark. 683, 27 S. W. (2d) 106; Holt v. Manuel, 186 Ark. 435, 54 S. W. (2d) 66. In the case of Giese v. Jones, 185 Ark. 548, 48 S. W. (2d) 232, it was held that, although the decree recited that publication of the notice as required by law was given, still, if the decree itself contradicted such finding, it was open to collateral attack. In Price v. Gunn, 114 Ark. 551, 170 S. W. 247, L. R. A. 1915C, 158, it was again held that every presumption in favor of the jurisdiction of the court and the validity of the judgment is indulged unless it affirmatively appears from the record itself that facts essential to the jurisdiction are lacking, and that a judgment or decree entered upon constructive service by publication is upon an equal standing with a judgment upon personal service, and it was there said: “The affidavit in proof of the publication of the notice of pendency of-the suit is not a part of the record, however, from which it can be shown that there was want of jurisdiction by the court rendering the decree, no mention or recital of such proof of publication being found therein. ’ ’ In other words, in that case the decree failed to identify the service or notice that was published, but was couched in the following general terms: “Upon call of this cause, it appearing that all persons and corporations having or claiming interest in any of the lands hereinafter described have been fully and constructively summoned as required by law, and that said interested persons and corporations come not but make default. ’ ’ The finding in the case at bar in the foreclosure decree is entirely different. It particularly identifies the manner of service in the language above set out. It names the newspaper in which the notice was published and the length of time it was published and further recites that the cause was submitted to the court upon the complaint, the delinquent list and “the proof of publication of the notice aforesaid.” We think this is sufficient identification of the notice and proof of publication in the decree itself to make it a part of the record of the proceedings in this cause, arid, while there is a general finding of due and proper service upon all the owners of said lands, it is limited by the terms of the decree itself when it undertakes to describe the means and manner of service by publication of the notice in a certain newspaper and by stating that the cause was submitted upon the proof of publication of said notice. The statute under which the notice was attempted to be given, § 3631, Crawford & Moses’ Digest, requires that the notice shall contain a list of supposed owners with a descriptive list of delinquent lands and the amount due thereon from each. Since the notice as published failed to describe appellee’s land, the court was without jurisdiction to condemn it for sale, and therefore correctly canceled it, unless, indeed, there is a presumption that some other or different notice was published. We think there is no room for any such presumption in this ease. The suit was filed December 4, 1925, and the decree was had January 5, 1926. Within that time it would not have been possible for a new publication to have started and been completed before the decree. The decree of the court was therefore correct, and must be affirmed.