Buchanan v. Pemberton

Hart, J., (after stating the facts). Counsel for appellee seek to uphold the judgment dismissing the complaint on the ground that the description in the tax deed is not void for uncertainty and is therefore color of title. It will be remembered that the description in the tax deed is the “West part southwest quarter of the northeast quarter of section nine (9) west, township one (1) south, range ten (10) west, 30 acres.” Counsel for appellee rely on decisions of the Supreme Courts of Mississippi, Alabama and Iowa, holding that similar descriptions are not void for uncertainty. We do not deem it necessary, however, to cite or to review these cases; for our court has taken the contrary view and -in several cases where the descriptions were in all essential respects similar to the one in the case at bar has held that they were void for uncertainty. In Covington v. Berry, 76 Ark. 460, the court held that a tax deed describing land as the east part of the southeast quarter of section 30, township 5 north, range 4 east, 63 acres, was void for uncertainty of description. In Hewett v. Ozark White Lime Co., 120 Ark. 528, a tax deed describing land as the west part of the southeast quarter of the southeast quarter, etc., 7.60 acres, was void for uncertainty of description. Again, in Cotton v. White, 131 Ark. 273, a tax deed describing land as part of the northwest quarter of the northeast quarter and west part of the southeast quarter of the nprtheast quarter of a certain section, township and range was void for- uncertainty. These cases control here, and the description in the instant case is void for uncertainty because it does not specify the part of-the quarter section out of which the thirty acres are to be taken and therefore they cannot be located from the face of the deed. To obtain the benefits of section 2754 of Kirby’s Digest, the party must hold under color of title, peaceably, and in good faith believe that he is the owner of the land. Treaver v. Akin, 47 Ark. 528; Jefferson v. Edrington, 53 Ark. 545; White v. Stokes, 67 Ark. 184, and Beasley v. Equitable Securities Co., 72 Ark. 601. Appellee sets up title by purchase at a tax sale and insists that the appellant’s complaint should be dismissed for noncompliance with section 2759 of Kirby’s Digest. The statute provides that no person shall maintain an action for the recovery of any lands against any person who may hold such lands by virtue of a purchase at a tax sale without filing an affidavit setting forth that the claimant has tendered to the person holding the lands the amount of taxes and costs paid for the lands with the accrued interest and the value of all improvements made on the lands by the purchaser. Counsel -for appellant admits that the filing of such an affidavit is a prerequisite to the bringing of a suit under the statute for the recovery of the lands as held in Wolf & Bailey v. Phillips, 116 Ark. 115, and other cases; but he contends that it was not necessary to file the same in the present case because the sale for taxes was void on account of the uncertainty in the description of the land. We think counsel for appellant is correct in his contention. In Hershey v. Thompson, 50 Ark. 484, an assessment of land for taxation which describes it as part of the southeast quarter of the northeast quarter of a certain section, township, and range, was held void for uncertainty in the description of the part assessed and that no valid sale could he based thereon. The court said that in the assessment of lands for taxation the statute provides that the description of each tract shall be such as to identify and distinguish it from all other tracts of land. The purpose of the description is to inform the owner and all other persons of the tracts of land assessed and the amount of taxes levied thereon. The court held that the description was indefinite and void. In discussing the question the court said: “Appellant offered to identify the land in controversy as the land purchased by him, and on which he paid subsequent taxes,- by showing that it was the only land owned or claimed by Érb in the legal subdivision of which it is a part, but this does not show that the land owned by Erb was the land assessed or sold. If the appellant had shown that every other portion of the legal subdivision was assessed by proper description, it probably would have been sufficient proof that the land in controversy was the land intended to be sold to appellant, and that he had paid taxes on it. The description of the land in the receipts for subsequent taxes paid by appellant is equally defective as that in the assessment for 1878; and the proof offered is not sufficient to identify it as the land in controversy beyond cavil or doubt, or satisfactorily.” The same rule applies as to the description in the notice and sale of lands for taxes. Cooper v. Lee, 59 Ark. 460. One object of advertising tax sales is to give notice to the tax payer of his delinquency in order that he may pay the taxes. An equally important purpose is to give notice to the pubilc that they may have an opportunity of being present at the sale and bidding for the land. Therefore, in describing the land in the advertisement the sale and also in selling it there must be a particular and certain description in order that the owner may know that it is his land that is being sold and, also, that bidders may 'ascertain its location with a view to making their bids. It is impossible to locate the land from the description given. There is nothing in the record to aid the description or to identify the land sold. The description is void for uncertainty, and the collector therefore had no authority to sell the land for taxes. The defendant acquired no title by his purchase and took nothing by his deed. Hence the appellant was not required to make and file an affidavit of tender of taxes and the value of improvements made by appellee. It follows that the court erred in so holding and for that error the judgment will be reversed and the cause remanded for further proceedings according to law.