Lumsden v. Erstine

McFaddin, J. This cause involves an attack upon a tax sale and confirmation proceedings. The property (80 acres) was sold or forfeited to the state in 1930 for taxes of 1929 and was certified to the state ixx 1932. In 1936, this tract of 80 acrés, along with other lands, was confirmed to the state in a confirmation proceeding under act 1191 of 1935. In 1939, the appellees received their deed from the state. The lands had forfeited in 1930 in the name of Missouri State Life Insurance Company as the owner; and in 1938 the appellant, Lumsden, obtained his deed by mesne conveyances from the said owner. In 1939, the appellant filed suit to cancel the appellee’s deed, and made due tender, and alleged, a number of defects in the tax sale of 1930, one of which was that the lands sold for an excessive amount of costs. The appellees in answering, defended the tax sale and pleaded the confirmation decree of 193-6, under act 119 of 1935, in bar of the appellant’s suit. In the trial before the chancery court the appellees stipulated: “These defendants admit that the aggregate amount for which the lands here involved were sold for the taxes due for the year 1929 included costs which were five cents in excess of the total costs permitted to be charged. ’ ’ From the decree for the defendants the plaintiff has appealed. Several questions are argued, but the matter of excessive costs is determinative of the case. At the outset, we point out that act 423 of 1941 does not apply in this case because the confirmation decree herein was in 1936; and this court held in Schuman v. Walthour, 204 Ark. 634, 163 S. W. 2d 517: “We hold, therefore, that act 423 was not intended to and does not apply to confirmation decrees rendered prior to its passage, but only to those subsequently rendered.” Act 119 of 1935 has been before this court over a score of times. Reference is made to Shepard’s Arkansas Citations for all the cases citing this act. Act 284 of 1937 and act 318 of 1939 contained amendments not touching the case at bar. At the time of the confirmation decree, or within one year thereafter, many grounds of attack existed against the tax sale. Some cases involving attack within one year are: Hirsch and Schuman v. Dabbs and Mivelaz, 197 Ark. 756, 126 S. W. 2d 116; Billert v. Phillips, 198 Ark. 698, 130 S. W. 2d 715; Holt v. Reagan, 201 Ark. 1101, 148 S. W. 2d 155; Lubeke v. Holtzendorff, 203 Ark. 141, 157 S. W. 2d 770; Hollaway v. Jordan, 203 Ark. 216, 156 S. W. 2d 205; Schuman v. Hughes, 203 Ark. 395, 156 S. W. 2d 804; Wilson v. Fraps, 204 Ark. 444, 162 S. W. 2d 561; Gottfried v. Johnson, 204 Ark. 552, 163 S. W. 2d 162. After the lapse of a year from the confirmation proceedings, all irregularities and.defects are cured except those that go to the power to sell. Cases where irregularities and defects were so cured are: Ingram v. Blackmon, 202 Ark. 769, 152 S. W. 2d 315; Kirk v. Ellis, 192 Ark. 587, 93 S. W. 2d 139; Berry v. Davidson, 199 Ark. 276, 133 S. W. 2d 442; Redfern v. Dalton, 201 Ark. 359, 144 S. W. 2d 713; Faulkner v. Binns, Trustee, 202 Ark. 457, 151 S. W. 2d 101. In the case at bar we are considering an attack made more than one year after the confirmation decree and going to the power to sell. Some cases involving that situation are: Powell v. Coggins, 204 Ark. 739, 164 S. W. 2d 891; Fuller v. Wilkinson, 198 Ark. 102, 128 S. W. 2d 251; Dansby v. Weeks, 199 Ark. 497, 135 S. W. 2d 62; Kaplan v. Scherer, ante, p. 554, 169 S. W. 2d 660. In Fuller v. Wilkinson, 198 Ark. 102, 128 S. W. 2d 251, it was held that act 119 of 1935 was not a statute of limitations, but a curative statute intended to cure “any and all defects in the sale not related to the potver to sell.” In Faulkner v. Binns, Trustee, 202 Ark. 457, 151 S. W. 2d 101, it was again held that a confirmation under act 119 of 1935, and a lapse of one year thereafter cuts off all defects in a tax sale “where the poiver to sell existá.” In both cases it was recognized and declared that after the confirmation and the lapse of a year (it might be two years for persons out.of the jurisdiction of the United States by reason of the amendment of 1939) all defects in the tax sale are cut off except those defects that go to the “power to sell.” So, in order to see what defects can successfully be urged after the confirmation and the lapse of a year, we have to see what defects defeat the power to sell; and this involves a study of (a) what is the power to sell; and (b) what'defects defeat the power to sell. The “power to sell” presupposes a valid statute, and a valid procedure thereunder. In Black on Tax Titles (2d Edition) § 152, in discussing “Foundations of the power to sell land,” it is stated: “When we remember the character of inviolability which all just and enlightened governments impute to private property in land, and the sacred regard for such ownership which is manifested in the genius of the common law and the spirit and letter of our constitutions, it is evident that no other solution of the question will bear the test of searching inquiry. The state, therefore, lays a tax upon land, . . . and the same authority gives it power to collect the burden thus imposed. . . . Yet this right, like all others appertaining to the state, is not without checks and limitations. The seizure and sale must not be arbitrary or unwarranted. Sovereignty imports no power to deprive the citizen of his property except in pursuance of law and for a lawful demand. Where just and legal condemnation ends, confiscation begins. Hence the tax itself must be lawful, and be legally assessed and levied; the land must be such as is liable to contribute; and the owner must be fairly in default. Moreover, the statutes must prescribe regular and orderly processes, and these must be followed with scrupulous exactness by those who are charged with them, and eveiy reasonable opportunity must be afforded to the taxpayer to protect himself from illegal exaction or to save himself from the consequences of his inadvertence or neglect. This being understood, we are entitled to say that laws providing for the sale of lands for nonpayment of taxes are not unconstitutional. ’ ’ And to the same general effect, see Cooley on Taxation (4th Edition) %% 1381 and 1382. From these authorities, it may reasonably be said that the “power, to sell” requires the concurrent existence of certain essentials, suchas (a) a valid law; (b) a lawful tax; (c) legally assessed and levied; (d) on land liable to tax; and (e) the owner fairly in default. We proceed then to consideration of what specific defects defeat the power to sell; and Black on Tax Titles (2d Edition) lists at least five specific defects, any one of which defeats the power to sell. These are: I. A void description of the property defeats the power to sell. As Mr. Black says in § 172: “When tax proceedings are taken against the land itself, with no personal notice to the owner, it is generally agreed that the collector’s notice or petition for judgment must contain a reasonably certain description of the land, such as to admit of its identification. And this requirement is jurisdictional, and goes to the validity of the judgment. ’ ’ This court has held that a void description defeats the power to sell, and confirmation proceedings cannot cure this defect. Dansby v. Weeks, 199 Ark. 497, 135 S. W. 2d 62, and Powell v. Coggins, 204 Ark. 739, 164 S. W. 2d 891. II. A void tax defeats the power to sell; and if any part of the tax is illegal then the entire power to sell is defeated. Mr. Black, in § 230, of Lis .work, says: “One of the most important principles announced by the authorities under the general rule above stated is this: If land is sold for taxes, a part of which are legal and a part illegal, the sale is void in toto. Thus it is said: ‘Whenever a tax is invalid because of excess of authority or because the requisites in tax proceedings which the law has provided for the protection of the taxpayer are not complied with, any sale of the property based upon it will he void also. . . . And if property is sold for the satisfaction of several taxes anyone of which is unauthorized, or for any reason illegal, the sale is altogether void.’ Cooley’s Constitutional Limitation, 521. . . . It is also to be observed that it is entirely immaterial how small may be the illegal element that enters into the demand.” It will be observed that Mr. Black quotes Judge ■Cooley as additional authority. This court has held that the inclusion of an illegal tax defeats the power to sell, and confirmation proceedings cannot cure the defect. Some such cases are: Fuller v. Wilkinson, 198 Ark. 102, 128 S. W. 2d 251; Smart v. Alexander, 201 Ark. 211, 144 S. W. 2d 25; Sherrill v. Faulkner, 200 Ark. 1006, 142 S. W. 2d 129. III. If the property is not subject to taxation, then there is no power to sell. In § 267 of Black on Taxation, it is stated that there is no power to sell public property and other property not subject to taxation. This court has so held. Kaplan v. Scherer, ante, p. 554, 169 S. W. 2d 660; Winn v. Little, Rock, 165 Ark. 11, 262 S. W. 988. IV. Excessive charges defeat the power to sell. In § 232 of Black on Tax Titles, the author quotes Cooley on Taxation: “ ‘The statutory power is a power to sell for lawful taxes and lawful expenses, and if it is exceeded by including unlawful items of either class, the power is exceeded, and its exercise is invalid in toto, from the manifest impossibility of saving the sale in part, when the invalidity extends to the whole.’ Cooley on Taxation, 497. ’ ’ Section 235 of Black on Tax Titles says: “But just as soon as the costs or fees thus included are found to ■exceed the statutory limit, or to be unwarranted, this will vitiate the sale. For an excessive charge in this respect is evidently as fatal to the proceedings as if it had arisen in consequence of the illegal enlargement of the tax itself, or from any other cause,” and Cooley on Taxation (4th Edition) § 1392, says: “And a tax sale is made void if the tax is made excessive by adding an illegal percentage or item of interest, or illegal or excessive fees or charges.” The question of excessive charges is the question in the case at bar; and we will revert to this point shortly. Y. Black. on Tax Titles, § 156, states that prior payment destroys and defeats the power to sell. There is no need for us to go into that question here and review the Arkansas authorities because whatever may have been the trend of our authorities in this state heretofore on that question, it is specifically stated in act 423 of 1941: “Provided, nothing in this act shall prevent any person attacking such decree at any time on the grounds that taxes have actually been paid. ’ ’ Having discussed the power to sell and listed some of the specific defects which the authorities agree will defeat the power' to sell, we revert now to the fourth of those defects mentioned, to-wit: excessive charges, because that is the attack levied at the sale in this case. It has been recognized in Arkansas for many, many years that an excessive charge defeats the power to sell. This is no new law. In Goodrum v. Ayers, 56 Ark. 93, 19 S. W. 97, Justice Hemingway, spealdng for the court concerning an excessive charge of 25 cents, said: “As such fee was unlawfully embraced in the amount for which the several tracts were sold, it follows that the sale was unauthorized and void. The amount of the illegal excess is small, but according to the decisions of this court and the general current of authorities elsewhere, it is sufficient to invalidate the sale. Black on Tax Titles, §§ 98, 99.” In Darter v. Houser, 63 Ark. 475, 39 S. W. 358, Chief Justice Bunn, in speaking of an excess charge of 25' cents for a certificate of purchase, said: “Having been included in this instance as a part of the cost of sale, it was an overcharge, and, under the rulings in the case cited, the sale and subsequent proceedings thereunder are made void.” Justice Hughes, in Salinger v. Gunn, 61 Ark. 414, 33 S. W. 959, said: “At any rate, it appears that each tract was sold for the 25 cents too much mosts. Under the decision in Goodrum v. Ayers, 56 Ark. 93, 19 S. W. 97, this is fatal to the tax sale. ’ ’ Justice Battle, in Muskegon Lbr. Co. v. Brown, 66 Ark. 539, 51 S. W. 1056, said: “The forfeiture in 1872 was void because the collector had no authority to sell lands delinquent for taxes for any cost except the cost of advertising. ” Justice Battle, in Kirker v. Daniels, 73 Ark. 263, 83 S. W. 912, said: “The tax sale was void because the amount for which the land sold included the fee of 25 cents for the certificate of purchase; there being at that time no authority to sell the land for an amount including such fee. ’ ’ Some may say that the five cents excess in the case at bar is too small to upset a tax sale; but this court has held otherwise. In Cooper v. Freeman Lbr. Co., 61 Ark. 36, 31 S. W. 981, 32 S. W. 494, this court, speaking through Justice Hughes, said: “The smallness of the amount of the excess over the amount due does not, in a tax sale, affect the question, as the maxim, ‘ de minimis non curat lex,’ does not apply to tax sales. The provisions of the law made for the protection and benefit of the taxpayer are mandatory. ’ ’ And in § 233 of Black on Tax Titles cases from many jurisdictions are cited to show that the smallness of the excess cannot make legal the void sale. If the excess is as much as one cent, then the power to sell is vitiated. In the case at bar it was stipulated that the excess was five cents. If a citizens’ property can be taken from him by the sovereign for an excess of five cents, then by the same token it can be taken from him for an excess of five million dollars. If .a citizen’s rights and property are to’ be -safe, then they .must be kept safe against little exactions as well as against large encroachments. The constant drip of water will wear away the largest stone; and if the sovereign by constant inroads in small things is allowed to take the citizen’s property, then the rights of private ownership are gone to the realm of Limbo.' Courts are to protect the rights of citizens — thg,t is one of the reasons for the existence of judicial tribunals. But it has been contended that even if the power to sell was defeated by reason of the excessive charge in the tax sale of 1930, still the confirmation proceedings in 1936 cured the sale of any such defect. We revert to the language of Faulkner v. Binns, Trustee, and Fuller v. Wilkinson to show that the confirmation can cure all defects except those that relate to the poiuer to sell. The power to sell is defeated by the excessive charge; so the confirmation proceedings could not cure the defect of excessive charge, because the excessive charge defeated the power to sell. To say that the confirmation proceedings in 1936 cured the illegal taking of property for an excessive charge in 1930 is the same thing as to say that the breath of life can he breathed back into a corpse after a lapse of years. - It follows, therefore, that by reason of the excessive charge for which the property was sold in this case, the power to sell was defeated, and, therefore, the confirmation proceedings could not make the sale valid; and that the plaintiff was entitled to have his tender accepted and the lower court erred in failing to so hold. For the error indicated, the cause is reversed and remanded to the chancery court with directions to proceed in accordance with this opinion.