Beck v. Rhoads

Paul Ward, Associate Justice. Appellants, Buford F. and Dean K. Beck, filed suit to regain possession of two parcels of land in Malvern, and incidentally to cancel a deed conveying said lands to appellees, W. E. and Cecilia H. Rhoads, who were in possession at that time. The circuit judge (a jury having been waived) found the issues against appellants who have appealed for a reversal. The facts presently set out are not in dispute. Subject to the claim of appellees hereafter mentioned, appellants have held a good record title to said lands since about 1945. The land was included in the Waterworks Improvement District No. 16 of the City of Malvern (hereafter referred to as District) which was organized somewhere around the year 1900. The assessments of benefits against the land were not paid for the years 1950-1951, and foreclosure followed. The foreclosure decree is dated February 14, 1952, and the District was the purchaser at the sale which followed. The land, not having been redeemed, was deeded to the District on February 13, 1960. Three days later the District executed a quitclaim deed conveying the land to appellee W. E. Rhoads who went into possession. The following month Mr. and Mrs. Rhoads obtained a $10,000 title policy from the American Title and Insurance Company, and in May (1960) they executed a mortgage on the land to the Bank of Malvern to secure a loan of $3,500. The bank also obtained a title policy. Appellants’ suit was filed February 13, 1961. Appellants make two basic contentions for a reversal. One. The trial court erred in refusing to give them a default judgment against the Rhoads. Two. The District’s failure to give appellants notice (as required by statute) of the foreclosure proceedings rendered the decree (of foreclosure) void, which in turn voided the deed to the District and likewise the deed from the District to appellees. The Bank of Malvern was made a party to the suit because of its mortgage on the land. Hereafter we will refer to it as the bank and to Mr. and Mrs. Rhoads as appellees. One. Although the issue of a default judgment has been argued at length by both sides we deem it unnecessary to discuss that question since we have reached the conclusion that the decree appealed from must be reversed on the merits of the case presented under the second contention mentioned above. Two. Several questions are raised and must be discussed under this point. (a) Basically it was appellees’ contention in the trial below, and it is their contention here, that appellants, having waited more than five years after the foreclosure decree, are barred from maintaining this suit under the provisions of Ark. Stats. § 37-108. The pertinent part of this section reads: “All actions against the purchaser, his heirs or assigns, for the recovery of (lands sold by any collector of the revenue for the non-payment of taxes, and for) lands sold at judicial sales shall be brought within five [5] years after the date of such sale, and not thereafter. ...” In support of this contention appellees cite, among others, the case of Cutsinger v. Strang, 203 Ark. 699, 158 S. W. 2d 669. There the Court, in construing § 8924 of Pope’s Digest (same as Ark. Stats. § 37-108), held appellant was barred from maintaining his suit after five years had elapsed in a situation comparable to that of this case, except for the fact that in the cited case there was no question of notice involved. Moreover, we think the Gutsinger opinion must be reappraised in the light of Act 195 of 1949 which appears in Ark. Stats, as Sections 20-412 et seq., relied on by appellants. The provisions of Section 17 of Act 195 (Ark. Stats. § 20-418.13) may be summarized as follows: (a) The Board of Commissioners (of any Municipal Improvement District), before filing suit to collect delinquent taxes, shall obtain a list of the names of the owners and a description of their property; (b) a copy of the list shall be attached to the complaint; (c) twenty days before filing complaint, a registered letter (with return receipt requested) shall be sent to each name on the list; (d) an affidavit of the person mailing the letter must be attached to the complaint. Section 21 of Act 195 (Ark. Stats. § 20-446.1) also provides: “The owner of any land sold for delinquent installments due municipal districts shall have the right to redeem at any time within five (5) years from the date of sale. ...” We interpret this section to mean the owner would have five years to redeem under any circumstances — even if he had been given the statutory notice. Act 195 of 1949 has never been before this Court for interpretation but, after a careful study of its many provisions and particularly Section 17 summarized above, we do not construe Section 21 to mean the owner could not redeem after five years where he was not given notice of the foreclosure suit. Any other interpretation would seem to nullify the express purpose for which the act was passed, which was “to provide more protection for the owners of property located within municipal improvement districts. ...” (b) The decisive question therefore is whether proper notice of the foreclosure suit was given to appellants. In this connection it is (and was) appellees contention that the decree of foreclosure is regular on its face and that, therefore, no evidence could be offered to the contrary. Supporting this contention they quote from the decree the following: ‘ ‘ That notice of the pendency of this suit was given for the time and in the manner required by law. ...” From this appellees conclude that Section 17 of Act 195 (summarized above) was complied with. This conclusion, however, is negatived by the emphasized portion of the decree copied below: “That notice of the pendency of this suit was given for the time and in the manner required by law, as evidenced by proof of publication filed herein, showing that due notice of this suit was given by publication of a notice in a newspaper having a bona fide circulation in Hot Spring County, for two weeks consecutively, the first insertion being more than four weeks prior thereto.” (Emphasis ours.) If it be true that appellants were not given notice, as they contend, then the foreclosure decree together with the deeds based thereon must be held to be void under the provisions of Ark. Stats. § 29-107 quoted below: “All judgments, orders, sentences, and decrees, made, rendered, or pronounced, by any of the courts of the State, against any one without notice, actual or constructive, and all proceedings had under such judgments, orders, sentences, or decrees, shall be absolutely null and void.” In the case of Woolfolk v. Davis, 225 Ark. 722, 285 S. W. 2d 321 there appears this statement: “The record here shows that there is a total lack of service upon any of the appellees; no pleadings either by complaint or cross-complaint to authorize the judgment. A judgment rendered without notice to the parties affected is void under our statute, Ark. Stats. 1947, § 29-107.” The uncontradicted testimony is to the effect that appellants had no notice of any kind (either actual or by registered mail) that the foreclosure suit would be, or was in fact, filed in this case. If the foreclosure decree was void it is, of course, subject to colláteral attack under our decisions. (c) Notwithstanding what we have heretofore said, appellees vigorously contend appellants’ pleadings failed to raise the decisive question of the lack of notice heretofore discussed. This contention appears to be based specifically on the ground that the “record” in the foreclosure proceeding consists not only of the decree but also of the complaint and other pleadings, that the “record” was not challenged by appellants’ pleadings. We are unable to find any merit in this contention. It is true that appellants ’ complaint deals extensively with matters foreign to the issues here raised (based on a forfeiture of the land to the state) but it does state that appellees claim an interest in the land based on a quitclaim deed from the District; then it states that the record entries are void for, among others, the following reasons: “There was no notice of sale of said lands given, as required by law.”' Also, on March 1, 1961 (18 days after appellants’ complaint was filed) the District filed its separate answer, stating the complaint did not state facts sufficient to constitute a cause of action and requested the court to dismiss the complaint. The court took no action on this request. Thereafter appellees (not having filed their answer within 20 days), on June 1, 1961, filed a motion asking time to file an answer. In this motion appellees stated (among other things) they purchased the land from the District February 29,1960, and their defense was the same as that of the bank, but no request was made to have appellants ’ complaint dismissed. A few days later the bank filed a substituted answer in which (among other things) it admitted the validity of appellants ’ claim of title, but stated appellants were divested of their title by reason of the following things: (then follows four pages describing in detail how appellees secured their title by virtue of the foreclosure, the decree, and the deed from the District. Many exhibits were attached.) At no place in the answer was the sufficiency of the allegation of the complaint challenged. In addition to all this the trial court admitted appellants’ testimony relative to the question of lack of statutory notice. Moreover, at one time appellants requested the court to treat the complaint as amended to conform to the testimony, and the record does not show this request was denied. In view of all the above we are unwilling to hold the issue of lack of notice was not raised by the pleadings, or to hold that appellees were in any way misled. We find in the record no request by appellees to have the pleadings made more definite and certain. (d) Appellees contend that appellants’ complaint should be dismissed for failure to properly abstract the record. We have carefully examined this contention but find no merit in it. (e) Appellees finally contend that it was incumbent upon appellants to plead a valid defense to the foreclosure action. It was so held in Davis v. Bank of Atkins, 205 Ark. 144, 167 S. W. 2d 876. We are unwilling to sustain this contention for two reasons. One. The opinion in the cited case stated “The judgment against appellant here was not void but voidable”. We have already cited the statute which says a judgment or decree without notice is void. This Court can not by its decision change the plain wording of a Statute. Two. In our opinion this is not the kind of situation, as it was in the cited case, where it is incumbent upon the appellants to plead a meritorious defense — at any rate to do more than tender the amount of taxes, penalty, and costs as appellants have done. Act 195 mentioned heretofore in no way says or intimates that a land owner can redeem only where he has paid his taxes. It does, however, give him a right to redeem where his taxes or assessments have not been paid. Therefore, it was not necessary here for appellants to allege they paid the assessments on their land. We conclude, therefore that the judgment must be, and it is hereby, reversed, and the cause is remanded for entry of a judgment in accordance with this opinion. Reversed and Remanded. McFaddin, J., concurs.