• OF THE STATE OF AlIKANSA,S, 441 Term, 1857_ Payne vs Dan ley 9 e JG -Aio PA VNE VS. The proceeding for the confirmation of a tax title must be governed by the ordinary rules of chancer y practice: except where otherwise prescribed by the statute: and all testimony, resting in parol, must be presented in the form of written depositions unless dispensed with, and oral testimony at the hearing be authori2ed by the direction of the Court. The interest of two tenants in common, in a tract of land, ma y be assessed separately, and upon default by one to pay the taies assessed upon his undivided half, it may be sold without a sale of the entire interest of brbfli tprvintq iu rommfm—tlw 1 ,n-h am:fit having paid his share of the tax 21ppeal from 1-110 Circuit Coml of Thwrc ct',inf,1 la elmaffry. The Hon. Throdoric F. Sorrels, Circuit Judge. S. H. Hempstead, for the appellant. That it is not legal to tax and sell an undivided interest in a tract of laud. Such a sale is void_ Digpst 887, tiSS; 10 Ohio 422 ; 12 Serg & Rawle 999; 9 Ham. 43; 12 S. & N. 498; 23 Miss 192_ Tndefiniteness of description renders a sale for taxes void. 4 McLean 481; 13 How. 18. The law conceining tax sales must be strictly complied with. The tax deed is only prima facie evidence arid may be overthrown, 15 Ark. 337. Cummins for the appellee. Pa . y . ne had no right to appear or be heard in this case as to the undivided half in tlie lands; 1 Ark, Rep. 472; 3 Oilman 1:18. It is plain that all the powers conferred upon the Citcuit Courts by chapter 160 Rev. Stat., are in their nature chancery powers: They belong to the chancery side of the court, alai the party has no right to produce oral proof at the bearing
442 CASTS IN 'TITS1 SUPREME COURT Payne vs: Danley: January A man has the right to pay the taxes on las own property. and the officer is bound to receive it, when tendered: The collector then could not sell the entire interest in a tract of land owned by joint tenants, after one had paid his part: and it follows that he may sell the nridivivbd half of one who fails to pay. ,Tustice Scott delivered the opinion of the Court. This was a proveeding on the chancery side of the Drew (lir-eint Court, f4er the confirmation to the complainant below, of title to 1 numly . r of tracts of land specified m his petition. purchased by him at a sale by the Auditor in pursuance of the statute: the, undivided half of the lands thus sold and purcLas-ed having been previously forfeited to the State for the non-pd ■ meta of taxes assessed upon them; and not havinr, Leen redeemed within the time prescribed by law, With the petition A\reW filed the several Auditor'se deeds, and the publication prescribed by the statute, under which the pro,- ceeding was instituted, duly proven. The eonfirmatiOn of title was not F4inght, as to the entire estate in all the lands, but as to an undivided half of all the lands, that on4v having been sold, purchased and conve y ed, as appears by the petition, and the Auditor's deeds exhibited therewith. Payne, the appellant, intervened and contested the confirmation, setting up, by answer and by pleas, several irregularitn s in the proceoliirs of the collector of taxes. The answer, and the admissions at the heaving showed that at the time of the forfeiture, and for sonie years previous thereto, Payne owned an undivided halt of the lands in question, and that the other undivided half belonged to the Bank of Ken-tucky or some either non-resident. That, for several years, Payne not only paid the taxes on his own liIf, bat on the Bank's half also. At length he ceased to pay for the Bank's half, and paying only for his own, and no one else paying for the former, the forfeiture accrued. Upon the gnound that he had thus paid out money for the Bank Payne claimed a lien, for the sum paid out, on the undi-
OF THE STATE OF ARKANSAS. 44; Term, 1857: Payne vs. Danley, vided half owned by that corporation, and upon that ground predicated his right to intervene and contest the confirmation. No question below sems to have hcq-11 1 a i,cd a s to the right of Payne to intervene. At the hearing, Payne, to sustain the several irregularities in the pro leeedings of the collector of taxes. \)'llich lie had alleged his answer and pleas, ofered to read in Gyidencr, a writing or -pmporting in its caption, to be a "list of lands to lie offered for sale on the firtit _Monday ofSeiotemlie-r, 1:-4s f/ or taxes, etc,- under which divir, tracts of l ' and were described their value, the years for which they wtre taxed. the amount of taxee oh each, nmormt of po-naltv arid thil ioieiite veie set • out; opposhe to whieh were the respective elv name,; in winch the lands in question were ineldried .: a 1 ni oliposite which appeared the words: "Moses T_T. Payne and Ballk of Kentucky, each owns one undivided half,'' signed by no one, hat endi ors-ed—“filed Septemhzir 13tli, 1848—Y. R: Royal, Clerk,- which the petitioner el ojected to. and the court sustaining the objectioti ret-mwel to allow the piper to he read in evidence; -Whereupon, Payne called Young R Royal, t he clerk o+ -Drew cirri:lit:yam -I , proposed to prove by him that that paper was the only list ever filed in his office in respect to nomresident lands in that year and that that related to such lands; and offered to prove by him sonic other matters connected theiewith, which it is not necessary to set out; but the Court refused to allow the witness to be sworn, on the objection of the petitioner. that all such tes-ti-1110 1w ,horold -11P 11V depocition, and not oral Payne took, his hills of exceptions, and the Court, finding all of the alleited irregularities unsustained by the evidenee ni the can c e, decri`e.1 confirmation, according to the prayer of the petitioner, and Pay ne appeakd to this Comt. There avP hut two ■-.7vorrod,4 of reversal insisted upon liv the appellant's counsel in his argument, The one, that the Court improperly rejected the testimony offered, arid the nther, that the purchase and sale in question were illegal and void, because the interest and estate of one tenant in Common only, )vas sold.
444 CASES IN THE 5UPRE31E COURT Payne vs, Danley. January and not the whole tract of land as an entirety, or some specific part thereof as such. With regard to the first question there can be no difficultv. This proceeding is, substantially', a bill of peace. Overman vs. Parker, 4 Hemps. C. C. H. p. 694. Although special in its foirn it is, in its nature, but the application of a well known chancery remedy. (lb. p. 695.) It must, therefore, be governed by the ordinary rules of chancety practice, : unless in matters otherwise specially prescribed by the statute There does not appear to have been any direction of the Court below, previously, that atithoried oral testimony at the hearing, and dispensed with the ordinary necessity of written depositions. (Digest. ch. 28, sees. 65, 66.) The written document offered to be read, was not an exhibit in the case. Nor could it have been read in evidence, anywhere, unless accompanied by other proof, which, resting parol, ought, in this proceedmg, to have been presented in the form of written deposition, unless dispensed with_ The other ground, although not clear of difficulty when considered in reference to cases that might possibly arise, does not seem tenable US anubluction to the sale made in the ease. There is no want of certainty, as to the land bought and sold in this ease, to invalidate the sale. It was the undivided equal share in the several tracts of land owned by two tenants in common, listed to both of them, as owning each one-half •, the one tenant having duly paid his half of the tax, and the sale was to satisfy the residue of the assessment. In the ease of Rookendorff vs. Taylor's lessee, (4 Peters H.,) the land was owned b y two tenants in common. The assessment lists showed that one-half of the quantity was set down to each tenant—and thus each was taxed separately for his undivided interest. One of the tenants in common paid his part of the tax, and the other failing to do so, his undivided share of the land was The validit y of that sale was contested, and the Circuit Court of the District of Columbia, sustaining the objection, held; "that the entire land should have been assessed to the two ten-
OF KILL SKATE OF ARKANSAS. 445 Term, 1857, Payne y s: Danley. ants in common, Taylor and Toland, and accordingly advertised and rld as assessed to them," and so instructed the jury. But the Supreme Court overruled the objection, saying ( Ib. p. "the same valuation was placed on each half of the land, so that so far as the assesment goes, it did not substantially differ nom the instruction given. But the sale, to he valid, heed not extend to the interest of both tenants; one having paid his share of the tax, the interest of the other may well be sold for the halarieo." This authority goes tn the extent of holding the assessment good, whether madc in the form used in the case at bar, or in that used in the case cited; became "substantially" the same. And that a sale to be valid need not extend to the entire interest of both tenants, but would be equally so if the estate in fee of one of the tenants only was sold Upon his default, his co-tenant haying paid his own share of the ta g. Black. on Tax Titles We see no reason to doubt either as applied to the ass'ess-ment and sale in the case before us. The decree will be affiimed. Absent, Hon. Thos. B. Hanly.
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.