Matthews v. Williamson

Hart, J. (after stating the facts). It is the contention of counsel for the defendant that the decree rendered by the Pulaski Chancery Court in 1873 in the case of State v. Hempstead and Jett, seeking to foreclose the lien of the State against them for the unpaid purchase money, is absolutely void. The statute authorizing proceedings by the State for the foreclosure of land, where the land was sold on a credit may be found in Gantt’s Digest, sections 3994-3998. Section 3994 of Gantt’s Digest provides that if the return upon a process directed to the county in which the land is located shows that the defendant is not found in such county, or upon the affidavit of some credible person that the defendant is a nonresident of the State, the clerk of the chancery court, upon the application of the Attorney General, shall make and enter on the record an order which shall contain the title of the suit, the date and amount of the. note sued on, 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. Section 3995 provides that the publication of such warning order once in each week for four consecutive weeks in an authorized newspaper published at the seat of government, shall be equivalent to personal service. It is the contention of counsel for the defendant that the decree of the Pulaski Chancery Court is void because the record shows that the only" service had was by publication and the return of the sheriff only shows' that Hempstead was not found in Lafayette County and does not show that Jett was not found there. Counsel also contends that the decree is void because the proof of publication .of the warning order fails to show that it was published once each week for four consecutive weeks as required by the statute. The contention of counsel is not sound and is contrary to' the previous decisions of this court bearing on the question. In the case of McLain v. Duncan, 57 Ark. 49, which was a proceeding by the State to foreclose its lien against the purchaser of internal improvement lands, it was held that a decree in a proceeding by constructive service which recites that notice was given as required by the statute, without specifying how the notice was given, is valid against collateral attack. The court said that the law does not require the evidence of publication to be made a part'of the record, either by entering it at large on the record, or by filing it. The publication in that case was required to be made in two counties, and the record contained an affidavit showing publication in one county only. The court held that the mere absence of an affidavit as to the latter publication could not be allowed to overcome the presumption, arising from the recitals of the decree, that the court’s finding as to the notice was made upon sufficient competent evidence. Again, in Clay v. Bilby, 72 Ark. 101, the court said that, in case of service by publication, there being no statute forbidding it, parol evidence might be received to prove publication of the notice; and that, if the decree did not exclude the conclusion, the presumption was that sufficient and competent evidence was before the court to sustain its findings as to the publication of notice. Hence the court held that a decree in an overdue tax proceeding was not void on collateral attack, because the affidavit of publication of the warning order failed to state that the affiant was publisher of the paper,, that it was printed in the county named in the affidavit, and that it had a bona fide circulation therein for one month before the date of its first publication. In Whitford v. Whitford, 100 Ark. 63, it was held that, in case of service of process by publication, if no statute forbids, parol evidence may be received to prove publication of the warning order. The court further held that, if a decree does not exclude the conclusion, it will be presumed that sufficient and competent evidence was before the court to sustain a finding as to the publication of a warning order. The court further held that while the affidavit of the publisher shall be sufficient evidence of the publication of the warning order, it is not the exclusive evidence of that fact. Again in Taylor v. King, 135 Ark. 43, in discussing the validity of a decree in a foreclosure suit to enforce a vendor’s lien for the purchase money against a tract of land, the court said that, the decree having recited that the parties were duly served with summons, the allegations and proof of the' defendants to the effect that summons was not served upon them as required by law could not prevail against the decree in a collateral attack. The amended decree in the foreclosure suit of the State v. Hempstead and Jett in the Pulaski Chancery Court in 1873, recites that the defendants had been duly notified of the pendency of the suit against them as required by law and had failed to answer, plead or demur. The present case is a collateral attack on that decree, and the recital of the decree in that case that the defendants were notified of the pendency of the suit against them, as required by law, is conclusive of that fact in the present case. The presumption is that the court heard sufficient evidence upon which to base its findings. It is not a case where the finding of the decree is contradicted by the face of the record. Notwithstanding that the affidavit of the secretary of the newspaper tends to contradict the recitals of the decree, yet it is not sufficient for that purpose. The reason is that, while it is evidence of the publication of the warning order, it is not the exclusive evidence of that fact, and the presumption is that the court heard other evidence which sustained the recitals in the decree. It is also true that the warning order in the record shows that the service was by publication and that the return of the sheriff fails to show that Jett was not found in Lafayette County. It may be, however, that the court heard the testimony of the sheriff and that he testified that Jett was not found by him in Lafayette County. The statute also provides that the warning order may be issued upon the affidavit of some credible person. It may be that the court had such testimony before it. This holding is not opposed to the ruling in Winn v. Campbell, 94 Ark. 338. In that case there were various record entries from the filing of the bill to the last entry confirming the report of the commissioners, and these entries clearly showed that the land against which the foreclosure proceedings were instituted were described as situated in Columbia County, Arkansas. The court said that it could not indulge any presumption in the face of these record entries that the trial court heard evidence and found that the lands were in fact situated in Ouachita County, and that the publication was also made in that county. In the case at bar there are no record entries tending to contradict the recitals of the decree, and, as above stated, the evidence pointed out by counsel for the defendant was not the only evidence the court might have heard upon which to base the finding in the decree that the defendants were duly notified of the pendency of the suit as required by law. It is also contended by counsel for the defendant that the decree in the case of State v. Hempstead and Jett in the Pulaski Chancery Court in 1873 is void because the purchase price was paid in levee bonds. They rely on section 3983 of Gantt’s Digest, which was in force at the time. This section is now section 4913 of Kirby’s Digest. The section provides, in part, that all lands heretofore sold on a credit shall remain the property of the State until the full payment of the purchase money. This does not mean that the title to the land is retained in the State until paid for. The State sold the land to Wolfe, and the sale was confirmed in him. It is true he paid the purchase price in levee bonds, and that under our previous decisions this amounted to no payment at all, because the payment was made in an unlawful medium. The State, however, has sold the land to Wolfe and has only a lien for the purchase money. There was a contract between the State and Wolfe for the purchase of the land by tiim from the State. There has been no decree of the court, nor any action of the parties rescinding that contract. Therefore, it is still in force. A deed was executed to Wolfe and the land was placed upon the tax books. Wolfe became the equitable owner of the land and had the right to pay it out. Hence the State only had the right to foreclose its lien for the unpaid purchase money. Woodward v. Campbell, Commissioner, etc., 39 Ark. 580, and Cochran v. Cobb, 43 Ark. 180. In the latter case in discussing this question the court said: ‘ ‘ The rights of the State and of purchasers who have paid for lands in levee bonds are these: Where the contract has been executed, that is to say, where a deed has been made and the lands have passed into the hands of innocent third parties who have paid value for it, the State is estopped by its own grant to resort to the land (Fletcher v. Peck, 6 Cranch, 87), but may maintain an action against its grantee for the purchase price. But where the land, though patented, is in him, except by purchase for a valuable consideration without notice that the entry money is unpaid; and in all cases where the but tbe purchaser or his assigns holds a certificate of entry, the State may treat the supposed payment as a nullity and may subject the land to the purchase debt.” Hence the court properly held that Matthews had no title or interest in the land. By Act 226, the Legislature of 1919 ratified and confirmed the sale of land formerly owned by the State in which the sale was conducted pursuant to a decree of the Pulaski Chancery Court in favor of the State condemning the lands for sale to pay the unpaid purchase price, and in which the sales were made for a price payable in Arkansas levee bonds. The act authorizes the Commissioner of State Lands to execute deeds to the owner and quiets all the right and title of the State in the land. General Acts of 1919, page 174. This act is valid. Under it the title to the lands became vested in the plaintiff. Hence she had a right to have her title quieted as against the defendant. It follows that the decree will be affirmed.