Clay v. Bilby

Battrr, J. Matthew Clay, D. D. Saunders and F. V. McFarland instituted a suit in the Arkansas chancery court against J. S. Bilby, and asked the court to quiet title to certain land by setting aside a decree condemning the same to be sold under what is generally known as the “overdue tax act,” and by setting aside the sale thereof in pursuance of such decree. They alleged in their complaint that they were the owners of the land, and, without showing the proceedings of the court under which he claims title, stated that the defendant “is claiming or pretending to claim the title to said land by virtue of what is known as an 'overdue tax deed.’ ” and alleged in the same vague and indefinite way “that said overdue tax title is void * * * because the chancery court of Arkansas county, Arkansas, had no jurisdiction to render the alleged decree upon which the said title is based. That there was no publication or proof of publication of the warning order therein, as the law requires, and that there was absolutely no notice of the * * * pendency of said cause, either personal or constructive.” The defendant answered, and denied that plaintiffs were the owners of the land, and admitted “that he acquired title through a sale under an overdue tax proceeding; that the land was forfeited to the state, and on August 3, 1882, a complaint was filed, charging that taxes were due, and that the forfeiture was void, and praying a lien; and summons was issued and served upon the state auditor; that a warning order was issued and recorded * * * and was duly published;” that the circuit court, on the 9th day of February, 1883, decreed that the forfeiture to the state was void, and that certain taxes were due upon the land, and found the amount of the same and penalty and costs to be $9.16, “and ordered and decreed the same to be a lien upon the land, and that the same be sold, unless [the taxes, penalty and costs] were paid within a day named in the decree; and appointed J. J. Mc-Evoy commissioner to sell the land and execute the decree;” “that the lien was not paid, and the commissioner, after advertising the land according to law and the decree, sold the same at public sale for the amount of said lien and costs, and at the sale said lands were purchased by John T. Burns for the amount of the decree and costs, and said sale was duly approved by the court; and that said Burns sold and assigned his certificate of purchase, issued to him by the commissioner, to the Arkansas Real Estate Company, to which a deed was issued September 22, 1885, and said company sold said land to defendant by deed dated May 11, 1887.” And the defendant further alleged “that the plaintiffs have exercised no ownership over said land for thirty-eight years, and abandoned the land, and their claim is stale, and cannot be enforced in a court of equity.” The court, after Hearing the cause upon its merits, dismissed the complaint for want of equity; and the plaintiffs appealed. The land in controversy was forfeited to the State of Arkansas on account of the nonpayment of the taxes assessed against the same. For twenty-three years no taxes were paid thereon. On the 3d defy of August, 1882, a complaint was filed in the Arkansas circuit court, pursuant to an act entitled “An act to enforce the payment of overdue taxes,” approved March 12, 1881, in which it was alleged that the forfeiture was void, and the plaintiff asked that the land be sold to pay the taxes due thereon. An order requiring all persons having any right or interest in the land to appear and show cause, if any they could, why a lien shall not be declared on the same for unpaid taxes, and why it should not be sold for nonpayment thereof, in legal form, was entered on the record. A copy of it was published, and the following px-oof of the publication thereof was filed: “I, J. P. Pointer, one of the publishers of the Arkansas Gleaner, a newspaper published in the state and county of Arkansas, do héreby solemnly swear that the annexed and foreg'oing advertisement was published in said newspaper three weeks consecutively, towit: November 22 and 29 and December 6, 1882. J. P. Pointer, one of the publishers of the Arkansas Gleaner. “Sworn to before me, the 4th áa.y of January, 1883. J. J McEvo3r, Clerk.” On the 9th day of February, 1883, the court set aside the forfeiture, the same being illegal, and ordered the land sold to pay the taxes on the same, and appointed a commissioner for that purpose. The land was sold on the 17th day of May, 1883, to John T. Burns, and the sale was approved by the court. On the 14th of April, 1899, this suit was brought to set the sale aside and to quiet title; lacking one month and three days of being sixteen 3?ears after the sale was made. The appellants failed to show that they had any meritorious defense in the suit instituted under the “overdue tax act.” They do not allege that the taxes for which the land was sold were illegal or paid. Not a single ground for equitable interposition appears. State v Hill, 50 Ark. 458, 8 S. W. 401. Without "one palliating excuse, they show themselves guilty of the grossest negligence. They knew their land was subject to taxation, and liable to be sold if the taxes were not paid, yet they waited thirty-eight years before they offered to pay taxes. There is nothing in their case “to call forth a court of equity into activity.” But appellants say that the decree rendered in the suit instituted under the “overdue tax act” was absolutely void, because, in the affidavit filed to prove publication of the warning order, the affiant did not swear that he was a publisher of the Arkansas Gleaner, the newspaper in which it was published, and that such newspaper was printed in the county named in the affidavit, having a bona ñde circulation therein for one month before the date of the first publication of the warning order, and that it should be treated as void upon collateral attack. Is this true? The subject of impeachment of judgments of courts of competent jurisdiction was fully and well considered in Boyd v. Roane, 49 Ark. 397. In that case the court held that “since the enactment of the statute (Mansf. Dig.. § 5201) declaring all judgments pronounced by any of the courts of this state against any one without notice absolutely void, the doctrine laid down in Borden v. State, 11 Ark. 519, that the judgment of a superior court rendered without notice is not void, but only voidable, has been adhered to so often that it has become, in its application to analogous cases, a rule of property not to be disturbed by the courts;” that the statute applies to judgments pronounced in adversary suits, either in law or in equity; that such judgments without notice are absolutely void; that in case of domestic judgments collaterally attacked the question of notice or no notice must be tried by the court upon an inspection of the record only; and that, in the event the record is silent as to notice, the presumption is that notice was given, and this presumption cannot be contradicted. McLain v. Duncan, 57 Ark. 53, 20 S. W. 597; McConnell v. Day, 61 Ark. 474, 33 S. W. 731. The same rule has been substantially laid down by the courts of last resort in the following states: California, Maine, Michigan, Minnesota, Illinois, New Jersey, Massachusetts, 'Tennessee, South Carolina, Washington, Kentucky, Connecticut, Vermont, Missouri and Texas. 1 Bailey, Jurisdiction, § § 168, 169, 172a, 172b, 172c, and cases cited. In Settlemier v. Sullivan, 97 U. S. 444, 448, Mr. Justice Field, speaking for the court, said: “We do not question the doctrine that a court of general jurisdiction, acting within the scope of its authority — that is, within the boundaries which the law assigns to it with respect to subjects and persons — is presumed to act rightly and to have jurisdiction to render the judgment it pronounces, until the contrary appears. But this presumption can only arise with respect to jurisdictional facts, concerning which the record is silent. It cannot be indulged when the evidence respecting the facts is stated, or averments respecting them are made. If the record is silent with respect to any fact which must have been established before the court could have rightly acted, it will be presumed that such fact was properly brought to its knowledge. But if the record give the evidence, or make an averment with respect to a jurisdictional fact, it will be taken to speak the truth, and the whole truth, in that regard; and no presumption will be allowed that other and different evidence was produced, or that the fact was otherwise than averred. ‘If, for example/ to give an illustration from the case of Galpin v. Page, 18 Wall. 366, ‘it appears from the return of the officer or the proof of service contained in the record that the summons was served at a particular place, and there is no averment of any other service, it will not be presumed that service was also made at another and different place; or if it appear in like manner that the service was made upon a person other than the defendant, it will not be presumed, in the silence of the record, that it was made upon the defendant also.’ ” Applegate v. Lexington & Carter County Mining Co., 117 U. S. 255, 270. But this is not true in case of service by publication. In that case, no statute forbidding, parol evidence may be received to prove publication of notice; and if the decree or judgment does not exclude the conclusion, the presumption is that sufficient and competent evidence was before the court to sustain its findings as to the publication of notice. McLain v. Duncan, 57 Ark. 49, 53; Scott v. Pleasants, 21 Ark. 364; Porter v. Dooley, 66 Ark. 1; 1 Bailey, Jurisdiction, § I72g, and cases cited. Where the statutes require jurisdictional facts in certain cases to appear of record, and they do not so appear, no presumption is indulged in favor of the jurisdiction of the court. Gregory v. Bartlett, 55 Ark. 30, is an illustration. That was a suit brought under the “overdue tax act.” The statute required the clerk, upon the filing of the complaint, to enter an order on the record requiring all persons having any right or interest in the land described in the complaint to appear in court within forty days thereafter, then and there to show cause, if any they can, why a lien should not be declared on said lands for unpaid taxes, and why said lands shall not be sold for nonpayment thereof, and to cause a copy of such order to be published in a certain time and manner. The clerk failed to enter the order on record, and it was held that the court acquired no jurisdiction, and the proceedings in the case were void, although the order was duly published. Dick v. Foraker, 155 U. S. 404. In Beidler v. Beidler, 71 Ark. 318, 74 S. W. Rep. 13, two oí the defendants, being nonresidents, were not served with summons. No warning order for them to appear was made on the complaint, as the law requires, though one was published. The court in that case said: “The statute provides that, after it is shown that a summons cannot be served upon a defendant, 'the clerk shall make upon the complaint an order warning such defendant to appear in the action within thirty days from the time of the making the order.’ Sand. & H. Dig., § 5679. This court has repeatedly held that a compliance with provisions like this is an essential prerequisite to the publication of a warning order, without which no jurisdiction as to such defendants can be acquired, and all proceedings as to them are void.” But this statement was made in the case in which the clerk failed to make the warning order upon the complaint, when the case was here upon appeal, when the judgment of the court was directly attacked and must be limited to such cases. Gregory v. Bartlett, supra, is cited to sustain the statement. A comparison of the facts and statutes in the two cases and the reasoning of the court in Gregory v. Bartlett seem to support the statement. In Gallagher v. Johnson, 65 Ark. 90, a doctrine not in harmony with previous rulings of this court, was announced. That case was an action of ejectment by appellants against appellee to recover the possession of certain lands. The appellee claimed the lands under a sale made under a decree rendered in a certain suit instituted under the “overdue tax act” to subject them to sale for the payment of taxes, penalty and costs due thereon. The warning order was entered on record as required by the act, and it was published, but in the affidavit made to prove, publication “the affiant failed to state that his paper, in which the warning order was published, was a paper of bona ñde circulation in the county for the period of one month next before the first insertion of said warning order therein.” In this the affidavit was defective. The court held that this defect rendered the sale void, “the court not having acquired jurisdiction to decree the same,” and cited Lusk v. Perkins, 48 Ark. 238, 2 S. W. 847; Gibney v. Crawford. 51 Ark. 34, 9 S. W. 309; and Cross v. Wilson, 52 Ark. 312, 12 S. W. 576. But these cases do not sustain the court. The case first cited was an action to compel a constable to receive a county warrant in payment of a fine, and the second was an action to compel a tax collector to receive county warrants in payment of taxes. The defense in both cases was that the county court had made an order requiring all persons holding county warrants to present the same to the court within a specified time, and that the warrants in question^had not been presented within such time, and were therefore not receivable for any purpose. The order calling in warrants in the first case was held to be of no effect because it was not published in the manner prescribed by law, and in the other case there was no legal evidence of the publication. In both cases the court held that the county court, in calling in county warrants, acted under a special statutory authority, which must be strictly pursued, and, unless notice of the order making the call is given in the manner prescribed by the statute, the order is a nullity as to all warrants not presented in obedience to the call; and in the latter case it was held that where the statute prescribes the manner in which the notice must be proved, it cannot be shown in any other manner. The reasons upon which these cases are based are apparent. When county warrants are called in by the county court, the statute provides that it shall be the duty of the court to examine such as shall be presented, and to reject such part thereof as in its opinion the county is not justly and legally bound to pay; and, as to the warrants not presented, no action of the county court is .required, but the statute provides that persons holding the same “shall thereafter be forever debarred from deriving any benefits from their claims.” Before this penalty can be inflicted upon such persons, it is evident that the conditions upon which it is imposed must first be shown. These conditions are: a certain order shall be made, a certain notice shall be given, and it must be proved by such evidence as the statute says shall be the only evidence of such fact. Hence this court held in the cases cited as it did. Cross v. Wilson, the other case cited, was an action of ejectment. The plaintiff claimed title to the land in controversy under a commissioner’s deed executed pursuant to a decree of the Pulaski chancery court against Barkman and Candler, foreclosing the state’s lien for the purchase money. The statute in the case in which the decree was rendered provided that, if the return upon the process shows that the defendant is not found in the county, or is dead, “the clerk, upon the application of the prosecuting attorney, shall make and enter on the record an order which shall contain the title of the suit, the date and amount of the note or bond proceeded upon, and a description of the land upon which the lien is sought to be enforced, and warn the defendant to appear and make defense thereto on the first day of the next term of such court that commences more than sixty days from the date of such order.” “A summons was issued, to which the sheriff made return, that Barkman was dead, and that Candler did not reside in his county, and, from what he could learn, was also dead.” Thereupon the following order was published (omitting caption) : “The defendants, the legal representatives of E. M. Barkman and of James R. N. Candler, are warned to appear in this court within thirty days and answer the complaint of the plaintiff, the State of Arkansas, for use of the school fund. [Signed] D. P. Upham, Clerk.” The order that the statute required to be made in order to give the court jurisdiction was not made. The court said: “The record of the cause in which the decree relied upon as the foundation of the appellant’s title was rendered shows that it was based upon a warning order which does not state material facts required by the statute, and that proof of its publication is fatally defective. The decree was therefore void.” Porter v. Dooley, 66 Ark. 1, is in conflict with Gallagher v. Johnson, supra, and in part overrules it. In that case an effort was made to set aside a decree confirming a-tax title because it did not appear that the magistracy of the justice of the peace, before whom the proof of publication of the notice of the pendency of the proceeding to confirm was sworn to, was not certified to by the clerk of the county court, as required by the statute. This court held that the decree of confirmation was not void on collateral attack, the decree not excluding the conclusion that evidence other than that objected to was before the court upon the rendition of the decree. This conclusion was based, in part, upon the following quotation from the opinion in Scott v. Pleasants, 21 Ark. 364: “But it does not follow that the decree, though reversible upon appeal, and for error on its face, must be held void, and consequently be disregarded when introduced collaterally as evidence in an action of ejectment. The decree of the court was made upon a matter over which it had jurisdiction, as held in Evans v. Perciful, 5 Ark. 43. * * * A decree pro confesso on constructive notice that is defective is as good as a like decree upon insufficient personal service, and such decree, when made final, cannot be collaterally questioned. * * * The court rendering the decree under consideration passed directly upon the evidence of publication of the notice; that was one of its clearest prerogatives, and, though it may be admitted that the court wrongfully decided, its decision was simply an interpretation of the law that could have been corrected if made subject of direct review in this court.” The rule as to the impeachment of judgments of courts of competent jurisdiction were held to be applicable to decrees rendered in “overdue tax proceedings” in McCarter v. Neil, 50 Ark. 191. In speaking of the jurisdiction acquired by courts under the “overdue tax act,” this court in that case said: “Now, authority over the res was conferred on the * * * court by the act of March 12, 1881, entitled ‘An act to enforce the páyment of overdue taxes.’ And authority over the landowner was acquired by the filing of the complaint, stating that taxes were due on this particular tract, and by the publication of the required notice, which took the place of ordinary process to bring the parties into court. Actual seizure and possession of the land by an officer of the court were not directed, but the mere bringing of the suit was by law made equivalent to a seizure, being the open and public exercise of dominion over the land for the purposes of the suit.” And it further said in the same case: “Whether the tax decree [that is a decree rendered in a proceeding under the ‘overdue tax act’] * * * was open to collateral attack, and could be treated as a nullity, depended on the circumstances whether or not the court which rendered it had jurisdiction over the subject-matter and over the parties concerned. Bor mere errors and irregularities, the judgment could be assailed only in a direct proceeding; that is, by petition in the same case to set aside, or by some proceeding in the nature of a review on error.” As to mere irregularities, this court, in Webster v. Daniel, 47 Ark. 131, held: “Courts can acquire jurisdiction over a defendant only by service of summons, either actual or constructive, or of some other process issued in the suit, or by his appearance to the action in person -or bj' attorney. And objections for mere irregularity in the process or in the manner of its service must be made in the action. They cannot be set up in a collateral proceeding. When a warning order from a justice of the peace has been properly published, the failure to make proof of the publication b}r the person and in the form prescribed by law is a mere irregularity, which will not defeat the jurisdiction, and cannot be taken advantage of in a collateral proceeding.” Our conclusion is that the defect in the affidavit made to prove publication of the warning order in this case was a mere irregularity, which did not affect the jurisdiction of the court or the validity of the decree in question. Decree affirmed.