Laughlin v. Fisher

Hart, J., (after stating the facts). Section 7085 of Kirby’s Digest, provides that the county clerk shall cause a list of the delinquent lands to be published weekly for two weeks between the second Monday in May and the second Monday in June each year. The advertisement is for the purpose of notifying the owner of the land that the taxes are unpaid and that the land will be sold for the taxes unless paid before the sale; and also to bring together competing bidders at the sale. The advertisement is a prerequisite of the authority of t¡he officer to sell, and must' be made in substantial accordance with the requirements of the statute. Our previous decisions are uniform to the effect that the failure to give the notice for the length of time prescribed by the. statute is prejudicial to the owner’s interest and will avoid the sale. Thweatt v. Howard, 68 Ark. 426; Townsend v. Martin, 55 Ark. 192, and Martin v. McDiarmid, 55 Ark. 213. In Thweatt v. Howard, supra, publication for eleven days was held to be insufficient and avoided the sale. In the case at bar the records of the county clerk’s office show that the first publication was on the 30th of May, 1913, and that the sale commenced on the 9th of June, 1913. Hence the notice of the sale upon which the forfeiture to the State is based was not published for the full period of time, and for this reason the sale is void. The sale is void for another reason. In Hunt v. Gardner, 74 Ark. 583, it was held that under Kirby’s Digest, section 7086, requiring the county clerk to record the list of delinquent lands with a notice and a certificate stating in what newspaper said notice was published, the date of publication and for what length of time the same was published, failure of the clerk to record such list with notice and certificate before the day of sale invalidates all sales made by the collector on such day. There, as here, the record showed that the certificate was made on the day of the sale, and there was no proof to show- whether the certificate was made before or after the hour of sale. Other decisions to the effect that the certified record must be made before the day of sale are the following: Magness v. Harris, 80 Ark. 583; Townsend v. Penrose, 84 Ark. 316, and Frank Kendall Lumber Co. v. Smith, 87 Ark. 360. Counsel for appellant also relies upon a tax forfeiture to the State for the year 1910 and claims that his deed from the State is based upon this forfeiture. H. E. Fisher testified that he had owned the land since January 1, 1907, and had paid all the- State and county taxes continuously since that time. While his tax receipts would have been the best evidence that he had paid the taxes, still no objection was made to him testifying to that fact. It follows, therefore, that the forfeiture in 1910 for taxes was void and that appellant obtained no title to the land by virtue of his purchase alone from the State based on this forfeiture. Lonergan v. Baber, 59 Ark. 15, and Knauff v. Nat. Coop. & Woodenware Co., 99 Ark. 137. It’follows that the decree will be affirmed.