JAN, TERM, 1867. BISCOE V. COULTER. BISCOE ET AL.
V.
COULTER ET AL. The auditor's deed for land, forfeited for nonpayment of taxes and sold under the statute (Dig., ch. 139, sec. 131 to 147), is to be treated in the courts as prima facie evidence that all things required by law to be done to make a good and valid sale, were done by the collector and auditor: and it is incumbent upon the party assailing the title of the purchaser, to show affirmatively a non-compliance with some substantial requisite of the law. (Merrick & Feuno v. Hutt, 15 Ark. 331; Patrick v. Davis, 15 Ark. Where the collector, instead of offering for sale, separately, each tract of land advertised to be sold fur taxes, presents the llst to the persons present, and offers to sell if tbey would buy, and they all reply that they will not buy any of them, it is but fair to presume that no injury resulted to the owners of the lands by the failure of the collector to comply with the letter of the statute in the mode of offering the lands for sale. But th:s court would not encourage or sanction any substantial depat tare from it, under any ci y eti msts noes. A denial in the answer, when respondve to an allegation in the bill, of a matter not alleged to be within the pecuiiar knowledge of the reap ,ndent, will be treated as merely putting the allegation in issue. ( Watson v. Palmer, 5 Ark. 501; Burr v. Bur-ton, ante.) *The testimon y of the collector of taxes, if r424 competent ior such a purpose, is not sufficient to ovvrturn and defeat a tax titleo land acquired by purchase from the audi . or, by impeaching the truth of his own official re; urn, attested by the clerk of s the e c . ounty, as to the mode of offering the lands for If lands are subject to taxation, they are subject to sale for taxes, the right to tax inv9Iving the power to enforce payment by sale of the lands. Under section 1, chapter 139, Dig., all lands are made subject to taxation except such as are exempt therefrom by the compact between the State and United States; and there . is no statute exempting the lands mortgaged to the Real Estate Hank from taxation; such exemption cannot arise, by implication, from the fact that the State has a contingent mortgage Interest in the land. Under our statute the land itself is sold for taxes, and not the particula.r interest or title of the person to whom the land is assessed; and though lands belonging to the State would be exempt from taxation and sale, the State cannot he regarded as the owner of the lands mortgaged to the Real Estate Hank, to secure the stock notes, so as to exempt them from taxation. Appeal from the Circuit Court of Sevier County in Chancery.
BISCOE V. COULTER. VOL. 18 ON SHELTON WATSON, Cir-borrowed on the same account $1,566.67, H cuit Judge. for which he made his note to the bank, with Henry K. Brown and Wm. Pike & Cummins, for the appellants. Moss as securities, payable twelve Watkins & Gallagher, for the appel-months after its date. lees. These stock notes remaining unpaid after maturity, the trustees of the bank 425*] *ENGLISH, C. J. On the 29th filed a bill in the Sevier circuit court of January, 1850, Biscoe and others, for foreclosure of said mortgages, and trustees of the Real Estate Bank, filed payment of the notes. Afterwards. a bill in the Sevier circuit court, against ascertaining that, on the 8th of April, David R. Coulter, Turner H. Buckner, 1844, Hartfield had mortgaged te William Wright, Benjamiu F. Hawk-Hamilton and Hawkins, the IV. of ins, Henry K. Brown, and Win. Moss, S. W. t of Sec. 6, in T. 13 S., of R. 32 4261 "to *carry decree into execu-West; and N. E. of Sec. l T. 13 S. R. tion, of revivor, and in the nature of a 33 W•, to secure and save them harm-supplemental bill." less as his securities on the note first The bill sets out and exhibits the above mentioned, the trustees filed an deed of assignment by which the Real amendment to their bill, stating this Estate Bank, on the 2d of April, 1842, fact, and praying to be subrogated to transferred to trustees all its assets for the rights of the securities under the the benefit of its creditors, and the mortgage to them; and have fore-several occurrences by which the com-closure thereof. 'plainants became trustees under the *This bill being against Hart- [*42 provisions of the deed. field, Hamilton, Hawkins, Brown and The bill further alleges that one Moss, the trustees obtained a decree, by Benj. H. G. Hartfield was a subscriber consent, on the 16th of April, 1846, for for ninety-six shares of the capital foreclosure of both mortgages and pay-stock of the Real Estate Bank, for ment of the amount due on the two which he made his bond for $9,600, notes, the lauds mortgaged by Hart-dated 10th June, 1837, and due 26th field to the bank to be first sold, and Oct., 1861. To secure the payment of then those mortgaged by him to his se-which, and any money that he might curities, if the first failed to satisfy the borrow upon his * stock credit, he exe-decree. Brittin was appointed a coni cuted to the bank, under the provisions missioner to make the sale, but he died of its charter, a mortgage on the 10th in June, 1846'. and no sale was made, ofJune, 1837, and another on the 28th and the decree remained unexecuted tc April, 1841, upon the S. E. 4 of Sec. 1, the time of filing the present bill to and the E. of the N. E. I of Sec. 12, in carry it into execution, etc. T. 13 S., of R. 33 West, which mort-About the time of filing the origina3 gages were duly acknowledged and re-bill, the trustees also brought suits ai corded iu Sevier county, where the law upon the notes, against Hartfield, lands were situated. Brown and Moss, in Hempstead, and On the 16th of April, 1840, Hartfield Hartfield, Hamilton and Hawkins iu borrowed of the bank, on his stock Sevier county. Hartfield, having re-credit, $2,945.33, for which he gave his moved to Texas, his securities applied note, with Robert Hamilton and Benj. to the trustees of the bank late in the F. Hawkins as securities, payable at year 1845 or early in 1846, and proposed twelve months from 19th April, 1840. that Hartfield should give up all the On the 21st of December, 1839, he mortgaged lands, and also the following
JAN. TERM, 1857. BISCOE V. COULTER. lands, and he and they be released from No. 5, W. frl. 4 of S. W. sec. 6 said debts, to-wit: the E. N. IV. - See. (mortgage No'. 3 and deed from 1, T. 13 S., R. 33 W, and the W. frl. N Wright), 104.64 acres. TV. f See. 6, in T. 13 S., R.32 TV., lying No. 6, W. frl. N. W. f sec. 6 (deed in Sevier county, the title to which two from Wright), 105.52 acres. tracts, and some of the other lands Nos. 1, 2, 3 and 4, being in E 13 S., being in one IVm. Wright. On the rep-R. 33 TT., and Nos. 5 and 6, in T. 13 S., resentations of the securities, and es-R. 32 TV. pecially Brown and Hawkins, that the The bill further alleges that it turned title was good, and the lands unineutn-out that all of these lands were assessed bered, the trustees agreed to this prop-for the taxes of 1844 and 1845, by the osition. sheriff of Sevier county, as the prop-Thereupon the sureties procured erty of Hartfield, a non-resident. On Hartfield to return from Texas to com-the 13th September, 1845, he advertised plete this arrangement; and about the them, in some way, to be sold for tax-fifteenth April, 1846, it was finally es on the 1st Monday (being 3d day) of agreed that the trustees would take said November, 1845.. The lands were as-lands in full payment of Hartfield's sessed at 06 per acre, or for their whole debts, and release him and his securi-value, $8,694. The sheriff never legally ties therefrom. That the suit in chan-advertised the lands; in point of fact, cery should proceed to foreclosure, and never sold them, or offered them for title be obtained by the trustees to the sale at all, but reported them to the mortgaged lauds by purchase under the auditor as struck off and forfeited to decree, and that Wright should convey the State for non-payment of taxes for to them the lands to which he held the 1844-'5; on the 3d Nov., 1845, he report-title. Accordingly, on the 15th April, 1846, ed the taxes and penalty on them to be as follows: Wright conveyed to the trustees the B. 4 of the N. IV. I, and the N. B. sec. No. 1, State tax and penalty, $3; f of 1, in E 13 S., R. 33 TV.; and the W frl. county tax and penalty, $6.90. 4 of the S. W. :1 of see. No. 2, State tax and penalty, $1.50; 6, in T 13 S., R. county tax and penaly, $3.45. 4281 32 W, by deed °duly acknowl-No. 3, State tax and penalty, $3; edged and recorded, with covenants of county tax and penalty, $6.90. • warranty. On this being done, the suits at law were dismissed, and the °No. 4, State tax and penalty, P429 decree of foreclosure taken, that the $1.50 ; county tax and penalty, $3.45. No. 5, State tax and penalty, $1.96 ; •trustees might obtain title to all of said lands, by sale and purchase under the county tax and penalty, $4.51. decree. No. 6, State tax and penalty, $1.98 ; The lands, and the titles which the county tax and penalty, $4.55. trustees expected to obtain by the There was some mistake in the de-above arrangement, are as follows: scription of No. 4 in some of the pro-No. 1, S. E. f sec. 1 (mortgages No. 1 ceedings, but complainants do not in-and 2 an(l decree), 160 acres. sist upon it as a fatal objection. No. 2, E. of N. E. f sec. 12 (mort-The bill alleges that the lands were gages No, 1 and 2 and decree). 80 acres. either never sold, or offered for sale at No. 3, N. E. f sec. 1 (mortgage No. 3, all, or if offered for sale, or decree and deed from Wright), 160 sold, it was void ;. because the taxes acres. for two years were added together, and No.4, E..1 of N. W. sec. 1 (deed the sale, if made, was for taxes and from Wright), 80 acres. penalties for both years, without any-
.13.1SCOE V. COULTER. VOL. 18 right to sell for the taxes for 1844 ; that scission of the agreement made by the none of the lands-had been omitted in trustees with Hartfleld's securities, to the assessment list for 1844; that the take the lands in payment of the debts; sheriff had not paid all the taxes and decree against- Hawkins, Moss -and charged against him in 1844, so as to Brown to pay the amounts for which give him a lien on the lands, under they were respec.ively sureties; and which he could sell; and if he had against Ilright on his warranty for the such a lien he could not include the value of the lands conveyed by him to . penalty. the trustees ; and for general relief But the said lands being pretended Coulter and Buckner filed a joint an-to be struck oft and forfeited to the swer. As to their title, they allege State, they were offered for sale that the lauds were regularly listed, by the auditor, on the 14th of assessed and placed upon the tax books February, 1848, and not being of Sevier county in 1845, tor the State -sold for want of bidders, he sold and county taxes assessed and. dtie them on the 28th of that -month thereon for the years -1844.1- -and for the taxes, penalties and costs, to the 1845, in the name • of Hartfl_ld defendants Coulter and Buckner, and as, and who then was, . a non-resi-executed to them a deed therefor. dent. That the taxes remaining-That the two stock-mortgages of wholly unpaid, the sheriff ah I . Hartfield were, by the provisions .of or made out and transmitted to the the charter of the Real Estate Bank, auditor, and also filed in the office of transferred to the State and the bond-the clerk of said county, a list of all holders, so that when the lands in-lands assessed for taxes in the year cluded in these mortgages were pre: .1845, belonging to non-residents, intended to be struck off to the State, cluding those Assessed Ito karttiel the had an interest in them as mort-stating the amoUnt of State and con it ty gagee. taxes due thereon and: nupaid.... That That the trustees and their Officers 'no One having paid the taxes esseased--- were wholly ignorant of the proceed-againat Hartfield, into the:State: treas-ings to forfeit the lands for taxes, and ury, tlie auditor, after. _correcting aud of Coulter and Buckner haming pur-adjusting the list, caused S'notice.-to:be: chased them of the auditor, until the published; aa frem theAfticr shefiffAnd summer of 1849, always supposing, up Coffecter, on the 24th September, to that time, that the taxes had been . in the !' , Arkutv,ias Banner ,-". _at regularly paid. Coulter. and Buckner Rock; that the lands in the list sO had taken possession of the lands, and reeted, which was there published, were using them as their own ; and eluding Hartfield's, would be sold tbi.- had commenced proceedings for con-taxes, etc., by said ' collector, at the firmation of their title. Hamilton had court house-door in said County, on the died insolvent, and Hartfield was in first Monday of November, 1845, unleas Texas. - .,the taxes, penalty and-costs . 'Were "pre.:,.. 430*] *The bill prayed revivor and viously paid. Thai ti . le taxes, etc., -on'. execution of the decree of foreclosure, Hartfield's lands remaining wholly un-cancellation of the title of Coulter and Paid, the said dolleetor,• in pursuance Buckner, and an account from them of of -the netice, did proceed, at the ffute rents and profits, deducting taxes, pen-and place named therein, -to otter:and alty and costs justly chargeable to the expose for sale, separately, each of •the trustees, etc. But, if this relief could tracts of land assessed to Hartheld, not be had, then the bill prayed a re-and no person bidding for either
JAN. TERM, 1857. BISCOE V. COULTER. tract, each was declared and sideration, sold and conveyed to them entered as forfeited, and sold all her right, title, interest and claim, in to the State iu pursuance of law, and to said lands—and that complain-4319 *etc. That the clerk of the ants, being mere trustees of the State, county attended the sale, and made a were estopped from controverting the regular record of it in the books kept title of respondents, even if the collect-for that purpose, showing the sale to or had not conformed to the statute the State of Hatfield's limds, and the in the proceedings which resulted in a amount of taxes, penalty, etc , due on forfeiture of the lands, etc. each tract, a copy of which record was Respondents did not know by him sent in due time to the auditor. what knowledge the complainants That the lands in question were not *had of the sale of said lands for [*432 assesssed in 1844, nor put on the taxes, etc., but they insist that the tax book for that year, but were ad- lands being regularly advertised, etc., mitted by mistake, and, therefore, as- complainants had the same notice that sessed for both years in 1845. That other land holders have ; that it was the proceedings of the sheriff and col- their duty to pay the tap es ; they were lector were regular, and in accordance chargeable with notice, aud were bound with the statute throughout. That he to take notice at their peril. did not sell for taxes of 1844, under any The other defendants answered the lien that he had claimed, but because bill also, but by consent of all the par-the lands were not assessed in that ties, the case, as between complainants year. That the taxes, etc., charged on one side, and Coulter and Buckner upon each tract, are correctly stated in on the other, was heard by itself, with-the bill, and are not excessive, etc. out prejudice to the right of the com-The answer admits that the lands plainants afterwards to bring on, like were offered for sale, as forfeited lands, a separate case, that between them-by the auditor, on the 2d Monday of selves and Hartfield's securities and February, 1848, and not sold for want Wright. It is, therefore, unnecessary of bidders. That on the 25th of the to make any statement of the other same month, respondents paid to the answers. auditor all the State and county taxes, The complainants filed a replication interest, penalties, costs, etc., due there- to the answer of Coulter and Buckner, on, and thereby purchased the said and on the final hearing, the bill was lands of the State, and obtained the dismissed as to them for want of equity; auditor's deeds therefor, etc. and complainants appealed. They admit that the stock mortgages The validity of the tax title of the executed by Hartfield upon part of the appellees is the only matter of contro-lands, were, by provision of the charter versy involved in this branch of the of the bank, transferred to the State to indemnify her on account of the bonds It seems from tile pleadings a/id evi-issued by her for the bank ; that com- dence in the cause, that the, appellees plainants were trustees for the State ; purchased the land in question from and that, at the time the lands were the auditor, under the provisions of forfeited, the State had an interest sec. 144-'5-'6-'7, ch. 139, Dig., p. 894 therein as mortgagee ; but they insist and received his deed for each tract that this. rather strengthened than thereof. prejudiced the title of respondents, in- These deeds are as good and valid, asmush as the State, through the audi- and have the sante force and effect as tor, voluntarily and fora valuable con- deeds made by the auditor for lands
BISCOE V. COULTER. VOL. 18 sold by him at public auction, etc. Id. said lands, I did not go over the lands sec. 147. offering each tract separately. I refer The auditor's deed for land sold by to the lands assessed to Hartfield, as him at public auction (under sec.131 to those assessed to other persons, which 143, ch. 139, Dig.), is to be treated in were advertised for sale at that time." the courts as prims facie "evidence Cr oss-examined by appellees—"I had, that all things required by law to be at the time and place of said sale, a list done to make a good and valid sale, of said lands, and annotmced and made were done by the collector and the au-known that if either of said persons ditor." Sec. 142. Merrick & Fenno v. would bid for any tract of said lands, Hutt, 15 Ark. 331., I would cry it ; and they said they In order to avoid the title of appel-would not bid for any of them. I had lees, therefore, it was incumbent upon a list of the lands, and exhibited it the appellants, who assailed the title, at the time. If either of the persons to show affirmatively a non-com-present would have bid for the lands, pliance with some substantial requisite I would have cried the tracts separately of the law, in the proceedings which and told them so. The town of Para-ultimately resulted in a sale of the clifta, the place of sale, was very ob-lands, by the auditor, to the appellees. scure and thinly inhabited—but few Merrick & Fenno v. Hutt, ubi sup. ; Pat-pelsons then residing in it—only five rick v. Davis, 15 Ark. 363. or six men—but few persons living The evidence read upon the near the town, the settlements being hearing conduces to sustain but a considerable distance off. It was not 4339 *one of the objections made by u , ,ual for many persons to congregate the appellants to the regularity of the at the town except at court, and other proceedings of the collector, etc.; that public days. I was sheriff of Sevier is, that he did not offer the lands for county front 1840 to 1848. At the titne sale, at the time they were forfeited to of said sale, and for some time before the State, in the mode prescribed by and after, the opinion prevailed to a law. considerable extent in the county, that Oa this point, the deposition of Jack-tax titles were worthless, and but few son, the collector, is as follows: pers9ns were di ,. posed to buy at such The lands of Hartfield, with others, sales. I do not recollect that any per-were advertised to be sold at the time sons were in town on the day of the and place prescribed by law. At the sale except the citi*zens. I of- [*434 time appointed for the sale, I, as col-fered the lands for sale at the court lector, etc., attended at the court house house door betweeu 10 o'clock, a. m., door of Sevier county. Ira N. Holman, and 3 o'clock, p. m. publicly. The sale the clerk of the county, and Fred L. was conducted as public sales usually Biddy (an attorney), were the only are, there being no means used, within persons present. I made known that my knowledge or belief, to prevent per-I would sell said lands for the taxes sons from attending it." and Holman and Biddy said they Re-examined by appellants.—"In the would not buy any of them. I then above statements, I refer not only to struck oft said lands as forfeited to the the lands assessed to Hartfield, but to State. There being no persons present all lands advertised for sale at the time but those above named, and they say-referred to. The whole list of lands ing that they would not buy any of then offered for sale, were stricken off 1. On tax titles, see Hogios v. Brashears, 13-250, in the same way, there being eleven note 2. tracts besides Hartfield's lands. But
JAN. TERM, 1857. BISCOE V. COULTER. I had the list there, and exhibited the arately, one of the persons present same, so persons could see if they might have bid, and agreed to pay the wished to do so. I do not know that taxes, etc., due on each tract for a less the persons present knew the numbers quantity than the whole of the tract, of the lands, but they might have and thereby have saved to the owner seen the list containing the description the remainder. of the lands, if they wished to do so. From all the facts stated by the col-According to my recollection, I did not lector, however, the probability is very cry the amount of taxes due on each strong that the result would have been tract." as it was, had he gone through the Recross-examined by appellees :— form of offering each tract separately, "Said lands had been advertised at the because it seems that the only two per-court house door, in said town of Para-sons present stated to him distinctly, clifta ; and Holman, the clerk, kept his after he had exhibited a list of the office in a few yards of the court house lands, that they would not bid for any door, and Biddy, the lawyer, resided in of them. Supposing, therefore, the the town, about 150 yards from the deposition of the collector to be com-court house. At the time of the sale, petent, and all the faces stated by him I had the advertisement, or a copy, to be true, it is but fair to presume containing a description of said lands." that no injury resulted to the owner of This appears to have been the only the lands by the failure of the collector deposition read upon the hearing. It to comply with the letter of the stat-was read by agreement of parties, with ute, in the mode of offering the lands an express reservation of objections to for sale. See Blackwell on Tax Titles, competency and relevancy. ch. 14, p. 305, et segr. The proceedings of the collector be-The mode of offering lauds for sale ing regular un to the time of sale, his prescribed by the statute, however, is power to sell the lands was complete. simple and just, and we would not en-The objection made to the validity of courage or sanction any substantial de-his sale of the lands to the State, does parture from it, under any circum-not relate to his power to make the sale, stances. but to the manner in which he exercised But if the irregularity in question the power. The objection is, that he were fatal to the title of the appellees, did not cry the lands by separate tracts. can the deposition of the collector, be The law required the collector to of-regarded as competent and sufficient to fer for sale, separately, each tract of establish such irregularity against the land contained in the advertised list, other evidence in the cause? etc. Dig., ch. 139, sec. 98. The bill alleges the irregularity. The The person offering at such answer denies it, and avers that the sale to pay the taxes, etc., on lands were offered by separa'te tracts. 435 l ]*any tract for the least quantity, The denial is reskonsive to the becomes the purchaser of such quan-allegation of the bill, but the mat-tity. Id. sec. 99. ter alleged not being within Every tract of land so offered for the peculiar knowledge of the sale; and not sold for want of bidders, respondents, the auswer will be treat-is entered as sold or forfeited to the ed as merely putting the allege-State, etc. id. sec. 104, 116. *tion in issue. Mason v. Pal– r436 It is insisted by the appellants that mer, 5 Ark. 501; Burr v. Burton, 17 if the collector had offered and cried Ark. each tract of the lands in question sep-The onus probandi was upon the ap-
BISCOE V. COULTER. VOL. 18 pellants. The only evidence produced under his hand, and attested by the by them was the deposition of the col-clerk of the county court, and to cause lector. the same to be recorded in the record-The appellees produced the auditor's er's office of his county; and declares deeds, which, as we have seen, were that it shall be evidence, in all primafasie evidence of the regularity courts of this State, that the of all the proceedings of the collector. title to each and every tract of Moreover, the clerk of the county • land, etc., contained in such [S437 court is required to attend such sales list, has passed to, and vested in, the of lands for taxes made by the col-State. Dig., ch. 139, 81c. 117. lector, and make a record thereof in a It appears that, in compliance with book, etc., describing the several tracts this statute, the collector returned a of land, etc., as they are described in list, attested by the clerk, embracing the (collector's) list, stating, in sepa-the several tracts of land assessed to rate columns, the State and county Hartfield, and showing that they had tax, with the penalty thereon, and how been offered for sale, and stricken off to. much of each tract, etc., was sold, and the State for want of bidders, etc. to whom sold; and such tracts as re-This return was also made upon the main unsold, for want of bidders, he official oath of the collector as well as is required to enter as sold to the State. the clerk. Dig., ch. 139, see. 104. By these returns, the collector and He is required also to make out and the clerk had placed upon the public certify a copy of such record to the audi-records evidence, under their official tor, etc., see. 105. oaths, that the several tracts of land It appears that Holman, the clerk of assessed to Hartfield had been offered the county court of Sevier county, at-for sale in accordance with law, and tended the sale iu question, and in forfeited to the State for want of bid. compliance with the statute, kept a liers. We say had been offered for sale record thereof, and certified a copy of in accordance with law, because if they such record to the auditor, showing had not been so substantially offered that the six tracts of land assessed to for sale, both the collector and the Harttield, describing the numbers of clerk were guilty of fraud, if not of offi-each tract, with the amount of taxes, cial perjury, in making their retnrus. etc., due thereon, were not sold for The appellees finding, as we must want of bidders, and entered in such suppose, such evidence upon the public record as sold to the State. records that the lands in question had The clerk was acting in his official been regularly forfeited to the State, capacity, and made the record and re-purchased them of the auditor, in good turn to the auditor under his official faith, as it may be presumed in the ab-oath, and such return must necessarily sence of any showing to the con-be regarded as some evidence that the trary, paid their money for them, several tracts of land hal been offered and entered into possession of them. for sale in accordance with law, and Now shall the collector be permitted forfeited to the State for the want of to overturn and defeat their title by bidders. impeaching the truth of his own offi-Furthermore, the statute made it the cial returns? duty of the collector, immediately after The decisions seem not to be in har-such sale, to make out a correct list of mony as to the competency of the offi-all lands that were forfeited to the cer to be a witness to impeach the State, at such sale, tor want of bidders, truth of his return. In some eases he
JAN. TERM, 1857. BI8COE V. COULTER. has been held to be incompetent; in the advertisement was published in a others the objection has been put to newspaper printed in Little Rock,, crediuffity. See Meredith v. Shewall,1 where, under the deed of assignment, .Penn. R. 496; Carpenter v. Sawyer et the trustees held their meetings, and al., 17 Verm. 123; 4 Cowen & their cashier and attorney kept their notes, Phil. Ev.,p. 801, 2 and cases cited. offices. That in April, 1846, the appel-, In the case of 7ucker v. Wilamowicz, laws perfected tho arrangement with 8 Ark. 166, this court adopts the com-Hartfield and his securities, by which prehensive rule "that every person not they were to have acquired title to all interested in the event of the suit, nor the lands. That it was about eighteen incapacitated by his religious tenets, months after this, before the time ex-nor by the commission of an infamous pired in which they had the right, 438'1 crime, is *a competent witness. under the statute, to redeem the lands All ether circumstances affect his from the auditor, by paying the taxes; credit only." etc., for which they had been forfeited If this rule can be regarded as appli-to the State. That after the expiration cable to the competency of an officer of two years from the time of forfeiture, to impeach his official return, and if he the auditor agai n advertised the lands must be held competent, notwithstand-for sale, in a newspaper printed ing the many considerations of public in Little Rock„ and on the policy against it, yet his credibility, is 2d Monday of February, 1848, so deeply affected that his evidence *publicly offered them for sale [*439 could have but little weight. Becau-e, for the taxeS, etc., due upon them, and having made his return upon his offi they were not sold for want of bidders. dal oath, and rights having grown up After this, they were purchased of the under it, when he is offered as a wit-auditor by the appellees. During all ness to impeach that return, it is not this time, and whilst all these public only oath against oath, but the integ-proceedings were taking place, the rity of his motives in impeaching the: appellants seem to have paid no atten-return may well be questioned. tion to the payment of taxes upon the Upon the state . of the pleading Q, and lands, the whole of the evidence in the case, The counsel for appellants have de-we shall therefore hold . that the depo-voted most of their argument in this sition of the collector is not sufficient to case, to the proposition that the two invhlidate and overturn the title of the tracts nf land embraced in Hartfleld's appellees- to the lands in question. stock mortgages to the Real Estate It may be further remarked that the Bank, were not subject to sale for taxes, facts appearing on the record before or if subject to sale, that only Hart-us, show no such diligence on the part ffeld's equity of redemption could be of the appellants in reference to the sold, and that.the lands would remain preservation of their rights to the lands subject to the lien of the mortgages, in question, as to give them any pecul-etc. ThisTroposition applies to all the iar claim to relief ln a court of equity landa mortgaged to the bank to secure as against the appellees. It appears the payment of stock, etc. that they.flied the original bill to fore-It appears that there were 207,101 close thPir mortgages upon parts of the acres of these lands, Valued by com-lands in January, 1845, after which the missioners at $3,380,772.38 (Gouge's lands were advertised for sale by the Rep.,p. 5). By the terms of the mort-collector; etc., and forfeited to the gages, the mortgagors were to remain State in November following. That in the use and occupation of the lands
VOL. 18 until the maturity of the debts secured Lands belonging to the State, of by the mortgages, and default of pay-course, would be exempt 'from taxa-ment. The bonds given for stock sub-tion. They are not embraced within scriptlorts do not mature until the year the object and intention of the statute. 1861. In equity, the lands are regard-The object of the statute is to raise a s(' as belonging to the mortgagors revenue from land, etc., for the support until default, etc. The mortgages are of the government. If the lands of the merely securities for the debts, etc. State were taxed, the taxes would If these lands were not subject to have to be paid out of the public treas-sale for taxes, they were not subject to ury, and of course no revenue would taxation, because the right to tax, be gained by the operation, but a loss without the power to enforce payment to the extent of the costs of assessing by sale of the lands, would be of no and collecting the taxes. avail. The consequence of the affirm-But the State cannot be regarded as ative of the proposition would be, that the owner of the lands mortgaged to the owners of this vast amount of land the Real Estate Bank, in the sense re-might have remained in their posses-ferred to. She has but an ultimate sion and use from the execution until interest as a mortgagee, to indemnify the inortgages, without the payment her against the payment of the bonds of any taxes upon them. issued by tier to the bank. See Wilson By section 1, chap. 139, Dig.,p. 870, all v. Biscoe et al., 11 Ark. 44. lands, etc., are made subject to taxa-It doubtless would be good policy for tion except such as are exempt there-the Legislature to pass an act making from by the compact between the some provision for the preservation of State and the United States. the ultimate rights of the State in these It is said that no species of property lands, under the mortgages, but until is ever to be regarded as exempt from this is done they must be held by Coe the operation of the taxing power, un-court subject to the existing revenue 4401 less by virtue "of some positive laws. law—such exemption can never arise The decree of the court below is by implication. Blackwell on Tax affirmed. Titles, p. 633. Absent, the Hon. Thomas B. Hanly. Waiving any question as to the ();led:--21-322-576; 22-199; 32-390; 29-480; 39-319. power of the Legislature to exempt particular lands from taxes, where lands generally are taxed, we know of no statute exempting the lands mortgaged to the Real Estate Bank from taxation. The other branch of the proposition, that if the lands were subject to sale for taxes at all, only the equity of redemption of the mortgagor could be sold, is equally untenable. Under our statute the land itself is sold for taxes, and not the particular interest or title of the person to whom it is assessed. A full and perfect title to the land passes by the sale, where the proceedings are regular. See Dig., ch.139, sec's 92, 112, 116, 117, 142, 147.
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.