364 CASES IN TI1E SUPREME COURT [Vol. 21 Scott ct al. vs. Pleasants et al. [July 21/364 DiRtga. aeJ 22/ 588 Rome, SCOTT ET AL. VS. PLEASANTS ET AL. A decree . of confirmation of a tax title, made upon a notice proven solely by the affidavit of the editor of a newspaper in which it was published. is erroneous, and may be reversed on appeal, but it is not void, and cannot be disregarded when introduced collaterally in an action of ejectment. It would be an alarming doctiine to establish, that on the trial of the issue of not guilty in an action of ejectment, the jury might find, from their own inspection of the record and proceedings, that a decree, offered in evidence, was fraudulently obtained, though referred to "other circumstances" to be taken in connection therewith, but with no instruction of what the facts must be, that they may consider to be such otber circumstances. A decree of confirmation of a tax title is admissible in evidence when, and as any other decree .given upon cOnstructive notice. and no more strictness is reouired in its recitals than is required in other decrees. Writ of Error to Pulaski Nrcnit Court. Hon. John J. Clendenin, Circuit Judge. Fowler & Stillwell, for the plaintiffs. The decree of Pulaski Circuit Court was void and should not have been admitted in evidence. It was rendered in a proceeding summary in its nature, and consequently, the statute must be strictly construed, and every fact necessary to give the court jurisdiction' must appear. 3 Ala. 153 ; 5 Ark. 410 ; 3 Yerg. 359. A recital in the decree that notice has been given, is not sufficient, if the evidence does not appear in the record. 11 Ark. 131 ; 13 Ib. 491. The publication of notice is required to be proved b y the affidavit of the publisher or proprietor of the newspaper. 6 Eng. 127 ; 13 Ark. 49 ;'14 Ark. 410. A decree against a party, without notice actual or constructive, is void, (4 Mon. 544 ; 3 A. K. Marsh. 43 ; 7 Tb. 658. and it
Vol. 21] OF THE STATE OF ARKANSAS. 365 Term, 1800.] Scott et al. vs. Pleasants et al. appears that there was no legal proof of the notice in the case. A jury may disregard a decree for fraud. 8 How. Miss. Rep. 386; 1 J. C. R. 4'07; Freem. Ch. Rep. 206; 15 J. R. 125. Watkins & Gallagher, for defendants. A decree of confirmation cannot be collaterally questioned, unless it be an absolute nullity, and so appears on its face; and though erroneous, yet, while mireversed, it is conclusive against the world. Frans & Black vs. Perciful, 5 .Ark. 41 ; Parker vs. Overman, 18 How. 140. Hempstead, also for defendants. A decree confirming a tax title must be treated like any other decree of a court of competent jurisdiction. It imports absolute verity , and no matter whether notice was given, or not, in exact accordance with the statute, a decree rendered is not void. Errors mav be corected in a direct proceedin g for the purpose ; but the decree cannot be impeached collaterally. Borden vs. State. 6 Eng. 519 ; Evans vs. Black, 5 Ark. 427 ; Par-ker vs. Overman, Hemp. C. C. R. ; S. C. 18 How. S. C. R. 137 : Thomas vs. Lawson's Hrs. 21 HOW. 342 ; Roane vs. Bonnell, 20 Ark. Mr. Justice Fairchild delivered the opinion of the court. In an action of ejectment, brought by the plaintiffs in error, against the defendant, Pleasants, with whom Alfred Wallace was made a defendant upon his motion, and upon whose death his personal representatives were substituted in his place, verdict and judgment were given that the plaintiffs should recover the north-east fractional quarter section 12 ; the south-east fractional quarter of same, and the north-west fractional quarter of section 13, township 1 south , range 11 west ; but because the y did not recover the west half of section 12. which was claimed b y their snit, they have brOnght the case here by writ of error. By the same evidence upon which the verdict was foimded,
366 CASES IN THE SUPREME COURT [Vol. 2i Scott et al. vs. Pleasants et al. [July the plaintiffs showed title to the west half of section 12, but did not recover it, on account of a decree of , the Circuit Court of Pulaski county, sitting in chancery, made the 18th of Sep-tember, 1841, and upon an ex parte application of William 1-cK. Ball, which decree was a confirmation of tax title to the land in question, previously acquired by Ball. Upon the 'permission given to the defendants to read the decree in evidence, and upon the effect which the notice of Ball's application and supporting affidavit can have upon the decree, must this case mainly turn. Other objections are made to the deed of Lawson to Balk and to the regularity of the sale, which the deed is intended to witness, but they are only to be considered when the decree shall have been found not to have confirmed the title, and not to have cured the irregularities and infirmities connected with the sale of the land, and the proceedings previous to the sale. No objection to the decree is apparent upon its face, but the original papers introduced by the plaintiff to rebut the decree, taken in connection with the recital in the decree, do show that the proof of notice of the sale to Ball and of his intended application for its confirmation, is not that contemplated by the third section of chapter 160. under the head of Tax Title, in English's Digest. By that statute the affidavit of a publisher or proprietor of the newspaper containing the notice is taken as sufficient evidence of the publication. The statute does not say that it will be the only evidence of the publication, and if the decree did not exclude the ermelu-sion, we might infer that other evidence than the affidavit attached to the notice read by the plaintiffs, was before the court upon the rendition of the decree. But a fair construction of the decree brings up the direct question, whether a decree of confirmation of a tax title, made upon a notice proven solely by the affidavit of the editor of the newspaper in which it was published , is for that reason. void. That such decree is erroneous and would be reversed upon appeal. ma y b9 safely presumed up , m the euthority of Brodie
Vol. 21] OF THE STATE OF ARKANSAS. 367 Term, 1860.] Scott et al. vs. Pleasants et al. vs. Skelton, 6 Eng. 130 ; and Saffold vs. Saffold, 14 Ark. 400. • Not to so hold would be proceeding upon a principle different from that which prevailed in those cases, and which is dis-Ainctly decided in Clark vs. Strong, 13 Ark. 492, to be that which should be adhered to in suits in chancery dependent upon con- • structive notice. But it does not follow that the decree, though reversible upon optieal, and for error upon its face, must be held void, and consequently be disregarded when introduced collaterally as evidence in an action of ejectment. The decree of the court was made upon a matter over which it had jurisdiction, as held in Evans vs. Perciful, 5 Ark. 43, and the conclusiveness of the decree does not depend upon its being made against a person, or against property. A decree pro confesso npon constructive notice that is defective, is as good as a like deCree upon insnfficient personal service' and such decree when made final cannot be collaterally questioned. The proceeding for a confirmation of Ball's tax title was not solely against the defendants in this case, but against them and all who might claim the lands embraced in the notice ; that is, against all the world : a notice was given when the court called a good notice, for being sufficiently proven; and this was one of the points before the court for its determination: all the world then was bound to question the notice by a direct proceeding, or to snbmit to the decree rendered. The court rendering the decree nnder consideration, passed directl y upon the evidence of the publication of the notice ; that was one of its clearest prerogatives, and though it may be admitted that the court wrongfully decided, its decision was simpl y an interpretation of law that could have been corected if made the subject of direct review in this court ; it could not be annulled by the Circuit Court of Pulaski county, as would have been done if the objection of the plaintiffs to its introduction as evidence had been sustained on the trial of this action of ejectment.
368 CASES IN THE SUPREME COURT [Vol. 21 Scott et al. vs. Pleasants et al. [July There was then no error in allowing the decree to be read in evidence, nor in not allowing the rebutting evidence of the plaintiffs to destroy it. The fifth and ninth instruction of the plaintiffs were rightly rcfused, and the first instruction of the defendants was correctly given to the jury, those of the plaintiffs dcnying tbe decree to be of any effect, for the defect in the proof of the notice, the eier affirming its conclusiveness, irrespective of the defect. There were no facts in the case' as shown by the bill of exceptions of the plaintiffs, upon the seventh and eighth instructions could be founded. They were to the effect that if the decree was obtained by fraud, or should so appear to the jury, they should disregard it in making up their verdict. Doubtless, .whatever is fraudulently done, should, wherever done, be liable to be questioned for its fraud, but in the application of even a legal axiom, if such a thing can be, great caution is reqnisite less a misapplication of the principle work equal injury to its denial. And it would be an alarming doctrine to establish, that a jnry, on the issue of not guilty in an action of ejectment, could find a degree to have been frandn-lently obtained, from their own inspection of what is on its face, and in the proceedings of the case' though referred to "other circumstances" to be taken in connection therewith. but with no instruction of what the facts must be. that they may consider to be such "other circumstances." The allegation in Ball's petition, that the notice was proven by the affidavit of the editor or publisher of the newspaper and when the affidavit is itself produced in the case, and does not contain any statement known to Ball to be false. is nothing to establish fraud or to afford -reason for its inference. And in the whole ease in which the decree was rendered. as shown b y tlic, decree and deed introduced by the defendants. prid by the ori g inal papers read by the plaintiffs, there was no perversion or concealment of such material fact, nor false statement unaccompanied b y the means of its detection, as could induce the court to do otherwi , e than it did decree.
Vol. 21] OF THE STATE OF ARKANSAS. 369 Term, 1860.] Scott et al. vs. Pleasants et al. It is claimed that in the confirmation of tax titles by our statutory decrees, a more stringent rule of construction must be applied to them than to other decrees ; that, as being founded on a summary proceeding,evcr y thing both to show the jurisdiction' the manner of its exercise, and the evidence on which it was rendered, must be set forth in the decree. If the proceeding be summary simply because it is out of the ordinary course of trial, because not affording a trial by jury, or by the rules of the common law, which is the definition of a summar y pro- ceeding in Bouvier's Law Dictionary, or because trial is had for the purpose of operating upon the propert y seized, it is not perceived why any rule of construction, or admissibilit y in evidence, should be applied to a decree of confirmation, than is applied to decrees rendered in our usual chancer y practice upon constructive notice, or to judgments at law in attachment eases. The notice that is given is mnch more ample, before a decree confirming a tax title can be given, than what is sufficient to call for a decree pro confesso in suits prosecuted b y the general chancery practice. A decree rendered upon notice b y publication for six weeks succesively. the last one six months before the term at which the decree is rendered, cannot be more summar y > in the sense of being speedy, or without probable actual notice, than one given after two insertions in a newspaper with the intervention of only four weeks between the pnblieation and the decree pro confesso. Nor is the proceding summary in the sense that a judgment or rather an execution, upon our delivery bonds is summary, where from the actual or alleged signing of a name to a deliver y bond. a part y is subject to have his property seized in execution, without an opportunity of confessing or denying the act upon which his liability rests; nor is it summary in the sense of the Tennessee proceeding shown in Iglehart vs. Moore, 16 Ark. 246, where a securit y in an injunction bond, upon proof of payment of the amount enjoined. ma y have a decree against his principal for the amonnt paid, without notice of the
370 CASES IN THE SVPRE M E COURT V ol. 91 [July decree, or any of the previous steps by which it is supported. We think that a confirmation decree is admissible in evidence, when and as any other decree given upon constructive notice, and that with due reference to the law by which it is regulated' no more strictness is required in its recitals, than is required in other decrees. There is nothing further that need be noticed in this branch of the case, as arising upon the bill of exceptions of the plaintiffs, the judgment of the Circuit Court of Pulaski county, so far as relates to the west half of section 12, township 1, south 11 west, must be 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.