Toby v. Haggerty

Mr. Chief Justice English delivered the opinion of .the court. The bill in this case was filed in the circuit court of Yell county, by Charles E. Toby, against Penelope Haggerty and others, heirs at law of Joab Haggerty, deceased. The object of the bill was to cancel tax deeds which Joab Haggerty procured, ;in his life time, to the east half of northeast quarter, and the east half of the south-west quarter of section 25, township six north, range 19 west, situate in Yell county, and to establish and quiet the complainant’s title to the same lands. ' ‘ ■ The title of the complainant was derived as follows: The lands having been forfeited to the state for non-payment of taxes-prior to the 18th September, 1848, the auditor, on that day, executed a donation deed to Isaac Brown for one of the tracts, and a like ¡deed to his wife Nancy, for the other; and afterwards, on the 11th of June, 1856, Brown and wife, by a joint deed, conveyed the lands to complainant. - . Joab Haggerty, who, ■ it seems, entered the lands, and was the owner of. them-at the time they .were forfeited to the state, on the 19th of April, 1851, filed affidavits' with the .auditor, stating that at-the time the lands were donated to Brown and wife, he owned improvements thereon, which they had failed to pay him for, etc.; whereupon the auditor-treated their donation deeds as forfeited, and Sold and conveyed the lands to Haggerty for arrearages of taxes, underact of 11th January, 1851, (Gould’s Dig. chap. 101, art. II. sec. 19, p. 699.) On the part of the complainant it is sufficiently made out that the deeds executed by the auditor to Haggerty, were null' and void for an objection that will be stated, to say nothing of others. It is alleged in the bill, and admitted by the answer, that the lands were situated in Tell county, though, near the line between Yell and JPerry. It appears from the treasurer’s receipt to Haggerty, exhibited with the bill, that the taxes due upon the lands at the time they were forfeited, and for which Haggerty purchased, or redeemed them, were charged upon them in Perry county, and not in Tell. Beyond question, the forfeiture and assessment of lands situated in Tell county, by the officers of Perry county, were null and void; and the forfeiture conferred no title upon the state, and the state could vest no title in Haggerty by conveying them to him upon his paying the taxes thus illegally assessed. But the complainant, in showing Haggerty’s tax' deeds to be void, has proven too much, and defeated his own title, for the donation deeds to Brown and wife must have rested upon the same illegal forfeiture, none other being alleged or shown by the evidence. It follows that the decree of the court below, dismissing the bill must be affirmed.