Beck v. Anderson-Tully Co.

Wood, J., (after stating the facts). The proceeding in tke ckancery court to sell tke lands for tke delinquent assessments under tke provisions of tke amendatory act of May 24, 1909, was made “a proceeding m rem.” In order to give tke ckancery court jurisdiction over tke particular tract of land in controversy, it was essential that tke board file a complaint in which tke lands were described witk sufficient certainty to enable tke clerk to give tke notice in tke form prescribed by tke statute, describing tke lands witk suck accuracy that tke alleged owners and all other persons claiming any interest whatever in tke lands would be advised, by reading* tke notice and referring to tke complaint, of what particular lands were involved in tke proceeding for tke sale of tke same. In Crittenden Lumber Company v. McDougal, 101 Ark. 390, an attack was made by tke lumber company upon tke validity of tke commissioner’s deed, made in pursuance of a sale by order of tke ckancery court on lands that were sold for levee taxes under tke authority and in pursuance of tke .act creating the levee district. In that case we said: ‘ ‘ This is a collateral attack upon a domestic judgment of a court of general jurisdiction. It is 'well settled that every presumption will be indulged in favor of the jurisdiction of such court, and the validity of the judgment which it enters. Unless it affirmatively appears from the record itself that-the facts essential -to the jurisdiction of such court did not exist, such collateral .attack against the judgment rendered by it will not prevail. It is true that, a judgment may be attacked collaterally, where, by the record, it is shown that there was want of jurisdiction in the court rendering it, either of the subject-matter or of the person of the defendant.” As this was a proceeding in rem, the filing of the complaint correctly describing the lands, was necessary in order to give the court jurisdiction of the subject-matter. See McCarter v. Neil, 50 Ark. 188-191. Therefore, unless the land was correctly described so as to enable the clerk to give notice of the particular tract involved the record itself would show that the court had no jurisdiction, and this would render the decree void even on collateral attack, as this is. A complaint correctly describing the lands, under the act, is the primal step in the proceeding. It is the basis upon which the clerk must act in giving the notice provided for. No presumptions can be indulged in favor of a decree grounded upon a complaint that does not contain a correct description of the particular tracts of land ordered.to be sold. The notice must be given by the clerk of the lands described in the complaint. Unless the lands are correctly described, the notice will necessarily be insufficient. Neither the complaint nor the notice are susceptible of amendment, and therefore no presumptions can be indulged contrary to what they show on their face. They are preliminary and prerequisite to a seizure and control by the court of the land sought to be condemned for the delinquent taxes. But the description of the land in the complaint here was sufficient to give the court jurisdiction over the particular tract of land, which was correctly described by the clerk in the notice he gave under the statutes, and which is correctly described in the decree under which the land was sold. All the lands in Crittenden County are in townships north of the base line and east of the. fifth principal meridian. Of this the court will take judicial cognizance. It was therefore not necessary to put the word north after the figure designating the township, nor the word east after the figure designating the range. Under our revenue system lands are listed so that opposite each name follows in order, the description, of each tract by section, or the largest subdivision of which the same is capable, designating the number of the section and part thereof, the congressional township or survey, and the value of each tract. The law prescribes the form in which lands shall be listed on the return of the assessor, as follows: In making such return each separate tract of land in each congressional township shall be placed in the numerical order of the section * * * which returns shall be as near the following form as practicable: Name of Part of Owners Section Section Township Range No.of acres Value (Kirby’s Digest, % 6976). This order of the listing of the lands follows the description of the Government survéy as to the numbers designating respectively the section, township and range. In the act creating the St. Francis Levee District it is provided: “The said lands shall be entered (for assessment) upon such books in convenient subdivisions as to survey by the United States Government. ’ ’ The court will take judicial notice of the fact that lands are described under the United States Government survey by designating first the section, then the township, and then the range, in the order named. When these provisions of our revenue law and-the act creating the St. Francis Levee District, in regard to the manner in which lands are to be listed and described, are taken into consideration, there can be no room for uncertainty or mistake in the description of the lands contained in the complaint filed by the board of directors of the St. Francis Levee District. The letter and figures, “west half 6-3-7” under the word ‘ ‘ description, ’ ’ as used could only mean the west half of section 6, township 3, range 7; and since all the lands in Crittenden County are in townships north and ranges east, necessarily the words north and east must be understood as following the figures designating the numbers of the township and range. This description, “west half 6-3-7,” was correctly interpreted by the clerk as meaning the west half of section 6, township. 3 north, range 7 east, and, accordingly, the notice was published giving the full description of the land, writing out the wokds “section,” “township” and “range,” preceding the numbers. Considering the manner in which lands are described, and the subdivisions thereof under the United States Government survey, and that they are to be listed and described in that order under our revenue system, and the act creating the St. Francis Levee District, we are of the opinion that the description contained in the complaint was susceptible of no other interpretation than that placed upon it by the clerk in the notice, and the court in rendering the decree for the condemnation and sale of the land. ■ In Cooper v. Lee, 59 Ark. 460, we said: “A description of the land sufficient to identify it and- notify the owner is essential to a valid sale in a proceeding to sell land for nonpayment -of taxes.” And, further, “A description of the land by the abbreviations commonly used to designate Government subdivisions sufficiently identifies it; but the use of abbreviations in a tax assessment or notice must be confined to those commonly, used and understood” (pp. 462, 463). The land was described in the complaint in the chancery proceeding so that -any one having -sufficient education to read, and enough intelligence to comprehend the usual and ordinary terms in which descriptions of land are couched, could readily understand what lands were involved. No land owner nor any one interested in these lands, if they exercised any sort of diligence, could have been mistaken as to the description of these lands. The' complaint and the publication by the clerk gave .notice to the world that the lands, among others, sought to be condemned and sold for delinquent levee assessments were the west half of section 6, in township 3 north, range 7 east, in Crittenden County. The chancery court therefore had jurisdiction and its decree, under which appellants claimed,' is invulnerable to the collateral attack made upon it by the appellee. The appellee contends that the chancery sale was void because the complaint specified that the amount of taxes was $35.20, and that the amount of the penalty and interest was not mentioned; that the warning order' contained the same sum, but that a decree was rendered for the sum of $46.88, which rendered same'' void. An examination of the complaint that was filed in the chancery proceeding to condemn for delinquent taxes shows that the board of directors asked that a lien be declared and the lands sold for the amount of the taxes and penalty, together with interest and costs due on each tract of land respectively. The notice published by the clerk informed the owners and all others interested that they were required by law “to appear and make defense to said suit or the same will be taken for confessed, and final judgment will be entered directing the sale of said land for the purpose of collecting said delinquent levee taxes, together with payment of interest, penalty and costs which will accrue as allowed by law- ’ ’ The decree recites that the total tax, penalty and costs allowed by law and adjudged against the tract of land in controversy was $46.88. It also shows that the cause was heard upon the complaint and exhibits, proof of publication, and oral evidence taken at the bar of the court. These recitals of the record are sufficient to justify the decree for the amount named therein. There is no showing that the decree was entered for an excessive amount of taxes, penalty and costs. It will be presumed that the chancery court ascertained the correct amount, and that the decree reflects that sum. The decree of the chancery court, therefore, in the suit at bar, setting aside the sale of the lands and cancelling the deeds under which appellants claim title, was erroneous, and it is therefore reversed and the.cause will be remanded with directions to dismiss appellee’s complaint for want of equity. Hart, J., dissents.