Martin v. McDiarmid

Cockrill, C. J. 1. Tax sale upon insufficient notice is void. It is immaterial to the appellant whether the tax title which he sought to have confirmed is based upon a forfeiture for the taxes of 1877, or upon the sale had in 1883 for the taxes of 1882. If it is for the latter, as his deed from the land commissioner recites, it fails, because it is shown that the notice of sale in Pulaski county for nonpayment of taxes in 1883 was published for only eleven days. That avoids the deed. Townsend v. Martin, ante, p. 192. 2. Presumption as to judgIf the claim of title rests upon a forfeiture for the taxes of 1877, it cannot be sustained, because a tax was levied by the levying court in that year at a time when it was not authorized to convene. The court met first at the time prescribed by the statute and levied taxes for that year. About five weeks afterwards the county judge and justices of the peace comprising the court assembled and undertook to levy an additional tax. The record made at that time recites that the justices and county judge “assembled under the peremptory order and command of the circuit court of the United States for the eastern district of Arkansas,” and that they proceeded to levy an additional tax in obedience to a mandamus from that court. As the record avers the authority under which the justices and judge assumed to assemble, there is no presumption that they acted under another or different authority—as, for instance, an adjournment to that date. Galpin v. Page, 18 Wall., 350; Parr v. Matthews, 50 Ark., 390. 3. Levying court cannot be compelled to convene at unauthorized time. When the levying court had adjourned after levying the taxes of 1877 at the time prescribed by statute, it could not be reconvened by any power except the legislature. The federal court had not the power by mandamus to cause the court to be held on a day not authorized by statute. Graham v. Parham, 32 Ark., 676. The second meeting of the court was therefore not a legal meeting, and the attempted levy of taxes was illegal. But the lands were sold for the taxes illegally levied as well as for the others. That rendered the sale void. t04;csfsrtfnCgCce0“ íu™atI°n of tax But the appellant argues that McDiarmid has no interest in any of the land described in his complaint and that his tax title should therefore be confirmed as though no one had appeared to contest it. McDiarmid filed an answer claiming some of the lots described in the complaint. The evidence of title which he ■exhibited with his answer was a land commissioner’s deed executed subsequent to that under which the appellant ■claimed, and reciting a forfeiture for the taxes of 1877. The appellant’s argument is that his commissioner’s deed carried 'the title which the commissioner subsequently attempted to •convey to McDiarmid’s grantor, and that McDiarmid took nothing, whether the sale for the taxes of 1877 was good or bad. Conceding that position to be correct, the facts were apparent from the pleadings, and McDiarmid’s answer presented no defence. If a demurrer had been interposed to it, and McDiarmid had set up no other claim to the land after an order sustaining it, it would have been proper for the court to treat him as an idle intruder, and decline to hear any evidence he might offer to adduce. That was the state of case in Black v. Percifield, 1 Ark., 472, where such a ruling was approved. But the appellant’s abstract does not present that state of facts. On the contrary he appears to have gone to trial on the issue of the legality of his own title, and was defeated. It is too late after the cause has- been successfully defended to raise the objection that McDiarmid was incompetent to defend. The only thing the appellant can possibly complain of is that there has been a trial of the merits of his title. If a trial has taken place which the appellant might have prevented, but did not, he is in no position to complain if no error was committed against him on the trial. One cannot be heard to say that the court erred in refusing to confer a title upon him when the record which he has helped to make shows that he is entitled to no relief. The court found, upon the issue selected by the appellant, that he had no title. That finding is sustained by the record. No injury then was done to the appellant’s, rights, and the judgment should be affirmed. It is so ordered.