100 SUPREME COURT OF ARKANSAS, [37 Ark. Hunt v. Curry. HUNT V. CURRY. 1. APPEAL: On overruling ntolion for new trial in Chance'''. Where a party excepts to the overruling of his motion for a new tiial in a Chancery caee, and prays and obtains an appeal, it will be construed to be an appeal from the decree of the Court and not alone from the overruling of the unnecessary motion for new trial. 2. Tex SALE: Purchaser's, remedy for taxes pa■id upon on invalid sale. If a tax sale prove invalid for any informality in the 'proceedings of any officer having any duty to perform in relation thereto, the purchaser has a personal right and remedy against the owner, and a lien upon the land as against him or his assignee for the taxes, penalty, cOst and interest thereon, from the time of payment, and for all subsequent taxes paid by him: but he can have no personal decree against the assignee, for taxes accrued on the lands before the assignment; and in a suit against the assignee to enforce such lien, he may have the former owner made defendant for personal decree against him. The failure of the purchaser to pay the excess of his bid over the aggregate amount of taxes, penalty and cost due on the land before receiving the certificate of purchase, will not toll his relief for the amount paid. 3. Saitz • Taxes paid before sate, no remedy against owner or the land. Where land is sold for taxes which have been paid, the purohaaer is without remedy against the owner or the land, to recover them. 4. Elam: Object of the Statute for tam sales. It is the policy of the Statute to protect purchasers paying the taxes upon lands of defaulting owners. 5. CHANCERY SALE: Per enforcement of lien. A sale in Chancery to enforce a , lien on land must be on credit, as provided by section 4708, GanttA:bigest. APPEAL from Ashley Circuit Court in Chancery. Ron. T. F. Sommuta, Circuit Judge. J. W. Van Gilder, far appellant: Relied upon the fact, that the complaint doee not state, nor the evidence prove any informality on the part of the
37 Ark.] MAY TERM, 1881. 101 Hunt v. Curry. Sheriff to invalidate the sale, but that the plaintiff lost the land by failing to pay'the whole of his bid, including the surplus. The suit was founded on section 178, of Rev. Acts of 1871, (see pamph. Acts, p.. 184.) The complaint fails to show who was the proprietor of the lands, when sold in 1872; a subsequent purchaser would not be liable in this action. No informality on the part of the Sheriff i§ set, out in the complaint. The pretended informality was on the part of the Clerk in giving certificate of purchase before 'payment of the whole. There was fault on the part of the pdrchaser, as well as the officer. S. P. Hughes, for appellee: There was no proper appeal in this case. A motion for a new trial was not good practice, and the appeal should have been. from the principal judgment, and not from the order overruling the motion. The case should be dismissed, citing Sykes v. La.ferry, 26 Ark., 414. The object of section 178 (p. 184), Acts of 71 was, in all cases, to throw the burden of the taxes on- the real proprietor, and to prevent purchasers at tax sales, who paid taxes, from losing their money. This is natural equity. It was informality on the part of the tax collector, not to have demanded and taken the whole amount of the bid, and paid it over as required by law. The proprietor of land cannot suffer by having to repay taxes on his land paid by another. • ENGLISH, C. J. This suit was commenced on the Chancery side of the Circuit Court, of Ashley county, the eighteenth day of December, 1877, by Robert S. Curry, against Susan M. Hunt.
102 SUPREME COURT OF ARKANSAS, [37 Ark. Hunt v. Curry. The bill was brought under the provisions of section 178, of the revenue act of March twenty-fifth, 1871 (Acts of 1871, p. 187), which was re-enacted as section 181 of the revenue act of twenty-eighth of .April, 1873 (Gantt's Digest, sec. 5214), to enforce a lien on lands for taxes paid by complainant. The bill alleges in substance, that at a tax sale, made by the collector of Ashley county, in May, 1872, complainant purchased four tracts of land, which are described and the amount of taxes, penalty and costs charged on each tract, and the sum bid for it, are stated; ' the aggregate of the former being $296, and of the latter $779. That complainant paid the collector the aggregate amount of the taxes, penalties and costs ($296.47), and obtained from the clerk a certificate of purchase, who after the expiration of the time allowed by law for redemption, executed to him a tax deed for the lands. That one Williamson Hunt was at that time in possession of the lands, claiming to be the owner thereof, and complainant instituted suit therefor in the Ashley Circuit Court, the tenth of February, 1875, for the purpose of possessing himself of the lands, and on the final trial thereof, in August, 1876, the tax sale was held invalid on account of some informality in the proceedings of the collector who made the sale, and judgment was rendered against him. That as complainant was informed and alleged, the informality consisted in the fact that the collector had permitted him to receive the certificate of purchase before he had paid to the collector the surplus, to be deposited in the County Treasury, as directed by the Statute. That Susan M. Hunt, who is made defendant, is the proprietor of the lands. There was a claim for taxes paid s r ubsequent to the tax sale, but no decree for them.
37 Ark.] MAY TERM, 1881. 103 Hunt v. Curry. The bill Prayed a decree for the $296.47, the aggregate amount of taxes, penalties and costs, paid by complainant, with interest thereon; that the sum charged on each tract and paid by him, be declared a specific lien thereon, and that the tracts be severally condemned and sold for the satisfaction of the decree. The answer of the defendant is brief. Sbe admits the sale as alleged, and that the sale, at a trial at law, was held invalid, but denies that it was on .account of some informality in the proceedings of the collector, and de-nmrs to the bill, because:— First. It does not state facts sufficient to constitute a cause of action; and, Secovd. That it does not state, or show what the informality in the proceedings of the collector was. On the hearing the demurrer was overruled, and decree as prayed by the bill. Derr( ndant filed a motion for a new, trial (which was not necessary in a Chancery case) which motion, a record entry states, the Court overruled; to which ruling the defendant at the time excepted, "and prays an • appeal to the Supreme Court, which prayer is by the Court granted." I. Upon this entry the counsel for appellee submits that the prayer and grant of appeal were from the de-Appeal: cision of the Court overruling the motion for 1. On °vev-ruling mo-a new trial, and not from the decree in the cause, tion for new trial and that therefore the appeal should be dis-in Chan- cery. missed. Doubtless the prayer and grant of appeal were intended to apply to the decree, and to construe the entry so as to restrict them to the . decision of the Court overruling the unnecessary motion for a new trial, would be to overlook substance and . grasp at a shadow. II. The bill purports to exhibit a transcript of the judgment in the ejectment suit, and the decree entry states that
104 SUPREME COURT OF ARKANSAS, [37 Ark. Hunt v. Curry. the cause was heard upon bill, answer, exhibits and depositions; but in the transcript before us there are no exhibits. Appellee read the depositions of witnesses, who stated that they were jurors in the ejectment suit, and in response to leading questions, several of them deposed that as they remembered it, ihe tax sale was held invalid, because appellee received the certifcate of purchase before he paid the surplus bid by him for the lands. There appears, however, to have been no motion to supprfss these depositions, and no question is made upon the evidence here. t T III. It is ax submitted for appellant that the Bale: Purchas-bill was insufficient, and the demurrer thereto er's reme-e d s y for tax-should have been sustained on the grounds:— paid upon in-First. That the bill valid sale. fails to state who was the - proprietor of the lands at the time of the tax sale in 1872. That it alleges that at the time the tax deed was issued, Williamson Hunt was in possession of the lands, claiming to be the owner thereof; and that at the time of the institution of this suit, appellant, Susan M. Hunt, was the proprietor of the lands. And it is submitted that, under the Statute, the lands would only be bound in the hands of the proprietor at the time of the sale, and he only could be sued. That a subsequent purchaser would not be liable in this kind of action. The Statute provides that:— "Upon the sale of any land, or town or city lot, or part thereof, for taxes then due, if such sale should prove invalid on account of any informality in the proceedings of any officer having any duty to perform in relation thereto, the purchaser shall be entitled to receive from the proprietor of such land or lot the amount of taxes, interest, penalty and costs of advertising, with interest thereon from the payment thereof, and the amount of taxes paid thereon by the purchaser subsequent to such sale, and such kIncl or lot shall
37 Ark.] MAY TERM, 1881. 105 l lunt v. Curry. be bound for the payment thereof ; and, in the event the purchaser having bid and paid a greater amount than the taxes, penalty and costs of advertising, the county clerk shall draw a warrant on the treasurer for the amount of such excess as may have been paid thereon, in favor of the purchaser or his assignee." By the word "proprietor," as used in this act, is clearly meant the defaulting owner, or person under Proprie-legal obligation to pay taxes on the land or lot, tor: Who Ie. and on account of whose failure to pay them the la liable to purchaser. sale occurs. As against such proprietor the Statute gives the purchaser a personal right, and of course a personal remedy. Appellant is not alleged to have been the proprietor of the lands at the time of the tax sale, or to have been. under any obligation to pay the taxes, etc., for which they were sold. But the bill did not seek to charge her personally and the decree was in rem against the land. She was alleged to be proprietor of the lands at the time of the institution of the suit, which was not denied by her answer, but admitted by her demurrer, and she was properly made defendant, as the bill sought to charge the lands. When or how she became proprietor of the lands, was not stated in her answer. But the Statute goes further. It provides that the land or lot shall be bound for the amount of the taxes, etc., charged thereon at the time of the sale, and subsequent taxes, paid by the purchaser. In other words, it gives the purchaser a lien upon the land or lot for the amounts so paid by him; and which he can enforce in Chancery. It twould be a narrow view of the Statute, and not warranted by its language, so to construe it as to confine the lien to the time the land or lot remains in the hands of him who was its proprietor at the time of the tax sale, and to hold
106 SUPREME COURT OF ARKANSAS, [37 Ark. Hunt v. Curry. that the lien may be defeated by a change of owners, which may often happen. If one might be an innocent purchaser in such case, appellant interposed no such defense. Appellant might have asked, for her own protection, that the former owner, who should have paid the taxes, and for whose default the lands were sold, and was, therefore, personally liable for them, be made . defendant, but this was not done, nor did she demur to the bill for defect of parties. Gantt's Dig., sec. 4564-5. IV. It is further submitted that the demurrer should have Failure of been sustained to the bill, because it does not purchner to pay ex- allege any informality in the proceedings of cess, no prejudice. the collector, within the meaning of the Statute. That the alleged informality was matter with which the collector had nothing to do. That if the clerk gave appellee a certificate of purchase without the payment of his bid, it was a fraud on the owner, and that appellee was the principal party to the fraud. That it was his duty to pay his bids, and if he failed to do so, it was his own fault, and not the collector's. That his failure to pay the surplus, could not possibly be an informality on the part of the collector. Such is the argument of the counsel for appellant. It is not true that if appellee failed to pay the whole of his bids on the several tracts of land before the certificate of purchase was issued by the clerk, the collector was not at fault. It was the legal duty of the collector to require ap-pellee to pay the whole amount bid for each tract before the clerk issued the certificate of purchase, and to deposit the excess or surplus of the bids, over and above taxes, penalties and costs, in the county treasury, to the credit of the owner of the lands. If, when the lands were struck off to appellee, he failed-
:37 Ark.] MAY TERM, 1881. 107 Huut v. Curry. to pay his bids, it was the duty of the collector to re-sell the lands. It seems, however, that appellee paid to the collector the ag-. gregate amount of taxes, penalties and costs charged upon the four tracts of land purchased by him, .and that the collector indulged him for the surplus, which was probably paid after the issuance of the certificate of purchase, and before the execution of the tax deed, for the bill does not aver that it was never paid, but that the collector permitted appellee to receive the certificate of purchase before he had paid the surplus. True, appellee was in fault as well as the collector; but he suffered for his fault by having the tax sale declared invalid in the ejectment suit; whether rightfully or not, is a question not before us in this case. Appellee certainly does not allege that he was guilty of any fraud in the matter; none was averred in the answer, and the demurrer to the bill merely admits the truth of its allegations. If it had been shown that the proprietor of 3. Tax Sale: the lands had paid the taxes, or that they were If taxes paid before sale, not subject to taxation, appellee would have purchaser without had no personal claim upon him, or lien upon remedy. the lands, for the taxes, penalties and costs paid by him. But the owner was a defaulter, and appellee has the merit of having paid them on his bids, and though he was to blame, as well as the collector, for obtaining the certificate of purchase before he paid the surplus, yet he was punished for that by loss of his tax deed, and it would seem hard to inflict a further punishment upon him by declaring ` that he has no remedy under the Statute to reclaim the amount of taxes, penalties and costs paid by him upon the lands. The policy of the State is to favor those who 4. Same: pay taxes upon lands for defaulting Statute ORTn- favors ers. purchasers.
108 SUPREME COURT OF ARKANSAS, [37 Ark-The language of the Statute is: "If such sale should prove invalid, on account of any informality in the, proceedings of any officer having any duty to perform in relation thereto. All the steps in the process, from the assessment to the exe-"Intcrm-cution of the tax deed, are related to the sale, What 19. and any substantial omission of legal duty, misconduct, or irregularity of any officer connected with the process, for which the sale should be held invalid, may be deemed an "informality" within the meaning of the act. We are not disposed to take the word in. a strict literal sense, and thereby limit the obvious purpose of the Statute. V. There ie an error, however, in the decree, for which it must be reversed. The suit was to enforce a lien upon lands, and the decree should have directed the commissioner to sell 5. Chancery them on credit, as required by the Statute Bale: To en- (Gantt's D g.g., sec. 4708), if not redeemed by force lien must be on credit. the day named, instead of for cash, as it in effect did. Reversed and remanded for further proceedings.
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.