480 HAGLIN V. HUNT. [187 HAGLIN V. HUNT. 4-3019 •• Opinion•delivered May22,.1933.. -• MUNICIPAL CORPORATIONS—IMPROVEMENT ASSESSMENTS—NOTICE OF SALE.—Recital, in a commissioner's notice of sala of property for nonpayment of assessments, that so much only of the property shall be-. sold as will pay the assessment, costs and penalty held not essential to,the validity of the sale; the statutory requirements ai to such sales being read into the notice and not required to be recited . in it. 2. MUNICIPAL coaPoRATioNs—DELINQuENT TAX "SALE.—The owner of two lots was entitled to cancellation df a commissioner's deed to two lots which were 'sold as one parcel upon nonpayment of improvement assessments, where the value of the lots was $4,000, the tax was $5, and the ownerStendered the amount due to the purchaser. Appeal from Sebastian Chancery Court, Ft. Smith District; C. M. Wofford,. Chancellor; affirmed..
ARK.] HAGIAN V. HUNT. 481 Geo..F.•Youmans, -for aPpellant. ' Hilt, Fitzhugh (6 .B .izzolara, for appellee: • &Num; J. Appellees owned two lots in the:Sebas-tian :Bridge District whieh-district. was created by act 104 of the Acts of 1913 (Acts 1.91.3, page 380): The •act provides,. -among other .things, for the assessment of benefits on the real property in the district, for making the amomit of the assessment against, each piece of real property a lien thereon, .and 'for tbe collection of the benefits in annual installments. Tbe method provided fo. r, enforcing , delinquent assessments is by suit in the chancery -court to foreclose the lien of the. assessment, leading, as in other cases - of foreclosure: to the Sale. of the property by, a commissioner of the court appointed for that purpose. The lots : owned by , appellees are described as lots 8 and 9, in block 4, of East End PlaCe, an addition to the city of Fort ' Smith; PriOr to Me aSsessmeni of benefitS a house had been built on the lots, a portion thM:eof being on . each let, and when the betterments were assesSed the two lots . were aSsesSed' AS a single tract. The value of the lots was assessed at $4,000, and the anntil,bepefit installment payable each year. was - $5. The 1927 inStallment was . not paid, an/1. a decree.was renderecito enforce paYment, pursnant te WhiCh the lofS 'Were sold to Ea Haglin, as a single tract, for the slim of $10, and upon the expifatiOn the tithe alloWed- fer • redemPtion, re-deMptien not : being :Made; a comthisSiOner 's deed waS bke'cUted and apPreved by the Celia. A short time before this sale a loan of . :$2,300-. W4s. obtained on 'the • security Of th'6 PropertY froM a local building and loan asSociatiOn: This Suit was brought to cancel the commissioner 's deed, it being alleged that the sale was not made in cbilformity with the requireinents • Of' the act pursuant to which , the improvement distriet had been organized -and the *Sale held. It was also' alleged' and shoWn -that full tender 'had- been made to the purchaser.- Seetion 8 of the aet provides :that; immediately after aScertaining the cost of the ithprovement, the aSsesSors Of benefits there provided- fori shall assess . i'the:vahie
482-HAGLIN V. HUNT. [187 of all benefits to be received by each landowner by reason of the prOposed improvemeni as affecting each tract of land within said district," and that : "They shall ascertain the value of the real property within said district without said improvement, and the value thereof as benefited by said improvement, and shall charge against each lot, tract or parcel of real estate in said district an assessment according to the value of the benefit that will accrue to it by reason of the construction of said bridge." The assessments having been made and approved, § 13 provides . that the secretary of the district " shall annually thereafter extend against each of said lots, tracts and parcels of real estate the payment due thereon for such year." After providing the procedure to enforce payment of delinquent assessments, § 25 of the act directs as follows : "The suit shall be brought in the name of the district, and, in its decree of condemnation, the court shall direct that, ik the sum adjudged shall not be paid within ten days, the property shall be sold by a special commissioner, appointed for that purpose, upon twenty days' notice. Provided, that only so much of the property shall be sold as will pay the assessment, costs and penalty, and no more." Notwithstanding this requirement, the report of the commissioner who made the sale shows that the two lots owned by appellees were sold in solido as a single parcel of land to Haglin for the sum of $10. The court below held that this sale was void, as not having been made in the manner required by law, and this appeal is from that decree. - - At § 1200 of Sloan's Improvement Districts in Ar-kansas it is said : "The following defects fin the notice of sale and the publication thereof are cured by confirmation and furnish no ground for a subsequent collateral attack on the sale : Failure to recite in a municipal district notice of sale that ' only so much of the property shall be sold as will pay the assessment, costs and penalty
ARk.] HAGLIN V. HUNT. 433 and no more'." The case of Cassady v. Norris; 118 Ark. 449, 177 S. W. 10, is cited in support of the text quoted. • • The property involved in the Cassady case was there referred to as "thelot in ecintroversy." As a matter of fact, the transcript in the case shows that the property involved was a half-lot. It was there insisted "that the sale was invalid because there was no notice to the effect that 'only so much of the property shall be sold as will pay the assessment, costs and penalty and no more.' Kirby's Digest, § 5700." . A comparison of this section with § 25 of act 104 of the Acts of 1913 shows that the latter was copied from the former. The court there-held that upon collateral attack the omiSsion tO state that only so much of the property would be Sold as was required to pay the assessment, costs and penalty was a question which could not be raised. HoWever, it was not held that this was an irregularity, but only that, if so, it was an irregularity which had been cured by the confirmation of the sale. • We have .here a different question. The provisions of § 5700, Kirby's Digest, and those also of § 25 of act 104 of 1913, would apply in applicable cases, whether the notice of sale recited them or not, and we do not think this recital in the nOtice of sale would be essential to the validity of t a h e sale in either case. Neither provides that the- notice sale shall recite that only so much of the property shall be sold as is necessary to pay the assessment, etc., but the direction is that only that quantity shall be sold, and the sale is subject to this statute, whether the notice recited its provisions or not. It is not stated in the opinion in the Cassady case, supra, that the sale was not made in conformity with § 5700, Kirby's Digest'. The contention was that the notice of sale: did not recite that il would be so sold; whereas in the instant case the fact is that the.sale did not confOrm to the requirements of § 25 of act 104, and the form of the notice is therefore unimportant. In the case of Knight v. Equitable Life Assurance Society, 186 Ark. 150, 52 S. W. (2d) 977, various objec-_ tions were made to the form and sufficiency of a commis-
484 HAGLIN V. HUNT. sioner's notice-hf . sale, and the - authorities .hpon- the subject were there reviewed. The objections- to ;the form:.of notice of sale were . overruled, , the opinion holding, in effect, that statUtory requirements regarding such sales wohld be ' read into 'the notice, ' and need nOt bnrecited in it. . We conclude therefore that . the Cassady case does not foreclose the question here presented... - At § 1611 of. the chapter on Taxation in .61-.0. page 1195, appears the following statement of the law : "A, statute, providing that the Officer* conducting the- ta: sale shall sell only 'so 'imich as may be necessary' of a tract to-satisfy the. taxes and . costs, imposes an.imperative limitation , oh him, and the sale will *be void where he sells an ehtire tract when a .portioh of it would have been . enongh, or sells -a-larger portion than was . necessary, or continues selling . after 'enough has been disposed of to-raise the.required . amount; and-the fact thatit* was • necessary to sell tbe quantity actually sold must, In some jurisdictions, appear of record, but there is authority that the recOrd may be amended' to show that in' fact only so much was sold as was necesSary -to pay the tax and charges due -thereon . ." •• . In the preceding section on this same page- of 0. J. appears this statement :. "If there is-a statutory provision that land sOld for taxes should :be sold as-a, -WhOlei . a- sale to one who was asked -to take the-least quantitY which he would accept for .paying: the taxes is , void,:although the purchaser refused -to accept less.. than :the whole." . . •. The case of Richards V: Howell, 60 Ark..215, 29 8: W. 461, is-cited in- the note. to .the text last quoted. Richards casea tax . sale was made, under a. -statute mhich required: that .the ;whole- tract,should be , -sold -to -the -persMi offering, to pay' the highest price' -therefor; but :the deed to . the tax purchaser .showed that*the least quantity of the:land was sold that any one would take and pay the taxes, penalty and costs charged against it,,and thati-no one having offered' to -pay them for less than the whole of the tract, it (the entire tract) was strhck off to the person who offered to pay, that .price. In holding that
ARK.] • HAGLIN V. HUNT. 485 the sale was void as not having been made in conformity with law, Judge BATTLE said: "But it may be said that the whole tract'sold only for the taxes, penalty and costs, and the orighial owner was not affected *or :prejudiced. How can tbis be. truly Said when it was not offered to the highest bidder? No one can tell how much it would have sold for, had it been sold in the manner prescribed by law. Some one might have given more for the entire tract, when he would not have paid the taxes, penalty and costs for less than the whole. It might have sold for more ; it could not have-brought less. The owner. was entitled to the experiment. The collector had no authority to take it from him, and constitute himself the jndge of 'what was for his benefit. , The sale in qUestion was void."' Here we have lots the assessed , value of which,* appearing upon the assessthent books of the district itself, was $4,000, and, upon the security of which, the owner had recently borrowed $2,300. These lots were sold for taxes amounting to $5, with penalty and costs in addi- tion. Can it be Said that no one would , have paid. this small sum for one or the other of these lots had they been separately offered for sale, as the statute requires? As was said by Judge BATTLE in the Richards case, supra, the owner was entitled to the 'experiment. In the case of LaCotts v. Quertermous, 83 Ark: 174, 103 S. W. 182, the he.adnote reads As follows : "Wheie the *evidence shoWs that, though *a 'tOwn was *not ineotr porated, it was a town hi fact, and that :the land*Within its limits was,' for convenience, laid Off into lots and , block similar to the . system pre y: airing. in , cities and finco-porated tOwns, , arid was So assessed, , a tax deed , is. void whia shows on its face Olat . two . separate Jots 'of . Jand within such town were sold . in Mass for . a" lump , sum. ' See also Harris v. Brady, 87 . Ark. 428,. 112 S. W. 974; Chatfield v. Iowa & Ark. Land Co., 88 Ark. '395, 11.4 S. W: 927 ; -Belcher v. Harr, 94 Ark. 921, 126 'S. W. 714 ; Camp-bell v. Sanders, 138 Ark. 94, 210 W. 782; Culver V.- Gillian, 160 Ark. 397,254 S. W. 681. " .
We conclude therefore that the court below wa's - correct in holding that the lots had not been sold in conformity with the law; and that the commissioner's deed was properly canceled, the amount due the purchaser having been tendered into court. Decree affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.