Bingham v. Powell

Smith, J. This appeal questions the validity of a tax sale, which is attacked upon the ground that notice of sale was not recorded' prior to the day of sale, as required by section 10085, C. & M. Digest. The county clerk who made the certificate (which bears date the day of sale) testified that the list of delinquent lands and the notice of sale were recorded on the day of sale, but before the hour of sale, and the insistence is that this substantially complies with the statute. The court below held otherwise. Was that holding correct? In the case of Hunt v. Gardner, 74 Ark. 583, it was said: “This court has held that a failure by the clerk to record the list and certify the publication until after the day of sale rendered the sale void. Logan v. Eastern Ark. Land Co., 68 Ark. 248. In that case, the certificate having been made after the day of sale, it was unnecessary to decide whether or not the making of the certificate on the day of sale would ¡be a compliance with the statute; but in the opinion a strong intimation is given that it would not be, and that the certificate must be made before the day of sale. The reasoning of the court leads to that conclusion. “There was no proof here to show whether the certificate was made before or after the hour of sale, and we need not indulge in presumption to determine at what hour it was made, as the law in such instance will take no heed of parts of days. If the certificate could be legally made on the day of sale, it could be made any time during the day. Treating it as settled by former decisions that the certificate cannot be made after the day of sale, it necessarily follows, from the language of the statute, that it must be made before the day of sale, and cannot be made on the day of sale. It was the manifest intention of the lawmakers to perpetuate, by this record, evidence of the notice of sale, its contents and time and manner of publication, and to make the record the sole evidence thereof. Looking at the statute, as we must, to discover when the record must he made, it is dear that1 it was intended to require the same to he made and certified before the day of sale.” See also Cook v. Ziff Colored Masonic Lodge, 80 Ark. 31; Martin v. Allard, 55 Ark. 218; Magness v. Harris, 80 Ark. 583; Townsend v. Penrose, 84 Ark. 316; Frank Kendall Lbr. Co. v. Smith, 87 Ark. 360; Logan v. Land Co., 68 Ark. 248; Laughlin v. Fisher, 141 Ark. 632; Cooper v. Lumber Co,, 61 Ark. 36; Birch v. Walworth, 79 Ark. 580; Earle Imp. Co. v. Chatfield, 81 Ark. 296; Earl v. Harris, 121 Ark. 621. The cam of Hunt v. Gardner, supra, was died and followed in the ease of Laughlin v. Fisher, supra, with this comment; “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” (citing eases); It is insisted that this comment indicates the view that, if it had been shown that the certificate was made before the hour of sale, this would have been sufficient, although it was made on the day of sale. We think the language quoted is not susceptible to that construction; but that it means that the record must not only be made before the hour of sale, but also before the day of sale. The other eases there died had announced the requirement that the record must be made before the day of sale and was cited as supporting Hunt v. Gardner; but it was the ease of Hunt v. Gardner which was being expressly followed, and in that case it had been said that “if the certificate could be legally made on the day of sale, it could be made any time during the day. Treating it as settled by former decisions that the certificate cannot be made after the day of sale, it necessarily follows, from the language of the statute, that it must be made before the day of sale, and cannot be made on the day of sale.” We think the necessary effect of the cases cited is to require the making of the record not only before the hour of sale, but before the day of sale; and the court below was correct in so holding. Decree affirmed.