Fleischer v. Wappanocca Outing Club

Wood, J., (after stating the facts). (1) The appellants contend that the decree condemning the lands in controversy to be sold for the nonpayment of taxes was 'conclusive of the issues raised by .appellees in their petition, towit, that they had paid 'and tendered for payment the taxes, on the lands in controversy for the year in which the siame were returned .as delinquent, and they rely upon the case of Pattison v. Smith, 94 Ark. 588. That was a suit in ejectment by the owner of the land sold for delinquent taxes against the purchaser at the sale, .alleging that the taxes for which the lands had been sold had been paid and 'that the decree condemning the same for sale was therefore void. The court held in that case that the decree of the chancery court condemning the land to be sold under the act of 1895 was conclusive, on collateral attack, of the question as to whether or not the taxes had been paid, (and that the land owner could not impeach the decree Iby showing actual payment of the taxes. That case has no application here for the reason that the appellees filed their petitions herein within ¡two years from the rendition of the decree under which their lands were sold, ■a.s they were authorized to do ¡by the act under which the lands were sold. Act 262 of the Acts of 1909, under which the lands in controversy were sold for the alleged nonpayment of taxes, provides in part ¡as follows: “And provided that the owner of said lands, * * * may at ¡any time within three years after the rendition of the final decree herein provided file his petition in said court, ¡alleging the payment of taxes on said lands * * for the year, for which they were sold ¡and upon the establishment of that fact the court shall vacate and ¡set aside the said decree as to such lands.” Appellees ’ petitions therefore were not collateral attacks upon the decree of the ,chancery ¡court, but were expressly authorized by the statute, and therefore must be considered as direct proceedings in the original action, attacking the decree. The appellants concede that the appellee, Wappanocca Outing Club, paid the taxes on the lands claimed by it. This, under the provisions of the act, shows that the decree of the court was correct as to appellee, Wappanocoa Outing Club. (2) But appellants contend that it does not protect appellee, Jewell. The court found that Jewell “tendered and offered to pay the levee taxes for the year 1908 during the ‘time allowed by law for the payment of said taxes and that the said tender was refused by the collector of said taxes. ’ ’ In Scroggin v. Ridling, 92 Ark. 630, we held. “Where the owner of land in good faith (attempted to pay the taxes on all of bis land, but by the collector’s mistake the taxes on a part of it were not paid, the owner will be entitled to redeem 'the land.” This principle applies here. The offer of appellee, Jewell, to pay and Shis tender of the taxes to the collector was 'tantamount, under the provisions of the statute, to a payment, and the 'collector, under those circumstances, was not authorized to return his land as delinquent. Kinsworthy v. Austin, 23 Ark. 375; Gunn v. Thompson, 70 Ark. 500; Knauff v. National Coop. & Woodenware Co., 99 Ark. 137. 'The decree is therefore affirmed.