Pack vs. Crawford et al. PACK VS. CRAWFORD et al. 1. TAX SALE: For a larger penalty than the law imposes, void. Under the provisions of the revenue act of 1868, and the act of February, 1869, supplemental thereto, a tax collector was required to sell each 3. Cannot be validated by introducing the recitals. Where, in such a case, the tax deed is relied upon as evidence of title, its invalidity cannot be cured by evidence aliunde, contradicting the recitals contained in it. 4. ATTORNEY: His right to purchase client's land at tax sale. The mere fact that a purchaser of land at a tax sale was, during the life of the deceased owner, his attorney in some suits, did not cast upon him the duty of paying the taxes or redeeming the land, or affect his right to purchase. APPEAL from Saline Circuit Court. Hon. JOHN WHYTOCK, Circuit Judge. J. M. Smith, contra. ENGLISH, C. J. The original bill in this case was filed in the Saline circuit court, by Wm. M. Pack, as administrator of Leonidas H. Bean, deceased, against the widow and heirs at [aw of his intestate. The object of the bill was to procure an order of court to sell the W. 1-2 of the N. W. 1-4 of sec. 13, and the E. 1-2 of the N. E. 1-4 of sec. 14, T. 1 N., R. 18 W., situated in Saline county, to pay debts probated against the estate of Bean, and of which he was alleged to be the owner at the time he died in Texas. 671 490 Pack vs. Crawford et al. The minor heirs of Bean filed a cross-bill, in which they claimed title to the lands in themselves, and other heirs of their maternal grandfather; made Crawford and Smith defendants, and prayed for partition of the lands, etc. Crawford and Smith answered, and also filed a cross-bill, in which they alleged that Crawford purchased the lands at tax sale, obtained a deed, and conveyed an undivided half of the lands to Smith. In the answers to this cross-bill, the tax title was assailed for alleged fraud and illegality. The court decreed the lands to Crawford and Smith, subject to the right of some of the minor parties to redeem two-sevenths of them; and Pack, as administrator of Bean, appealed. The tax deed made an exhibit to the cross-bill of Crawford and Smith, and relied on by them for title, is in substance as follows: The deed was executed by the county clerk to Wm. A. Crawford, bears date 25th of September, 1871, and recites that, "Whereas, on the 6th day of October, 1868, E. H. Vance jr., assessor in and for the county of Saline, did file in the clerk's office of said county an assessment of all the lands and town lots in said county, in manner and form as provided by law. And whereas, on the 1st day of February, 1869, James A. Mills, clerk of said county, did deliver to the collector of said county the tax books for the year 1868, embracing all of said lands and town lots, with the amount of taxes levied duly extended thereon, together with the warrant for the collection of said taxes as prescribed by law. "And whereas, the following tracts of land, viz: The west half of the northwest quarter of section thirteen, and the east half of the northeast quarter of section fourteen, in township one north, of range eighteen west, containing 160 acres, lying in said county, were entered, listed and assessed for taxation, in the name of Howald & Bean, for the year 1868, and Pack vs. Crawford et al. neither the owner, nor any person or persons for said owners, having paid the taxes levied as aforesaid, amounting to the sum of twenty-three and dollars. Wherefore, William M. Pack, as such collector, did, on the 7th day of June, 1869, return said tracts of land as delinquent; said delinquent lands were duly advertised, and notice given by publication as provided by law, that the collector would sell at public auction at the court house door in said county, on Monday, the 20th day of August, 1869, the said tracts of land for the taxes, together with 50 per cent. penalty, and costs thereon; and said collector did, on the date last mentioned, proceed to sell said lands; whereupon William A. Crawford bid, and offered for said lands, the sum of twenty-five dollars, and having paid to the collector the said sum of twenty-five dollars, and the term of two years having expired since the day of sale, and the said lands being unredeemed, and the certificate of purchase being now produced by said William A. Crawford, he now demands a deed for said lands. Now, know ye, that I, James A. Mills, clerk as aforesaid, pursuant to the provisions of sec. 129, of an act regulating the assessment and collection of the revenue of the state of Arkansas, approved March 25, 1871, and in consideration of the sum of twenty-five dollars, paid to the collector as aforesaid, do hereby grant, bargain and sell unto said William A. Crawford, his heirs and assigns, the before described tracts of land, etc." I. It seems from the face of the deed that the lands were advertised and sold for the taxes, and fifty per cent. penalty thereon for nonpayment. By sec. 44 of the act approved July 23, 1868, entitled "An act to assess and collect taxes, and for other purposes" (Acts of 1868, p. 273), a penalty of twenty-five per cent. was imposed for the nonpayment of taxes assessed on real property within the time fixed by the act. So by sec. 10 of the act of February 19, 1869, entitled "An act Pack vs. Crawford et al. to aid in assessing and collecting taxes for the year 1868," Acts of 1868-9, p. 49, it was provided that if the taxes on real property should not be paid within the time prescribed by sec. 8 of the act, they should be deemed delinquent, and a penalty of twenty-five per cent. added thereto. The lands in question were sold on August 2, 1869, for the taxes of 1868. It may be that the penalty of fifty per cent. was imposed under some provision of the act of April 8, 1869, entitled "An act regulating the assessment and collection of revenue," which was not published in the pamphlet acts of 1868-9, but in a separate pamphlet. But sec. 159 of this act, being the last section, declares: "That an act entitled an act to assess and collect taxes, and for other purposes, approved July 23, 1868, and all acts supplemental thereto, are hereby repealed, but shall remain in full force and effect for the purpose of making the collection of taxes for the year 1868." We have been able to find no act imposing a penalty of 50 per cent. for the nonpayment of taxes of 1868 on lands. The sale for a larger penalty than was imposed by law was illegal and invalid. Huse v. Merriman et al., 2 Greenl. (Me.), 376; Blackw. on Tax Titles, p. 192, and cases cited; Doe on dem., etc., v. McQuilkin, 8 Blackf., 335; McQuilkin v. Doe on dem. Stoddard, id., 581; Mason v. Roe, etc., 5 id., 98; Scott et al. v. Watkins, 22 id., 556. II. It also appears from the face of the deed that the collector sold the two tracts of land together, and not separately. Sec. 78 of the act of July 23, 1868, required the auditor to make out and forward to the county clerk a complete list of all lands subject to taxation in their respective counties; the list to show in whose name the original entry or purchase was made, the date of the entry, a description of each tract or parcel arranged in each township according to the numerical order of the sections. Pack vs. Crawford et al. The auditor was also required to furnish the clerks with assessment books, tax books, plats, etc. Id., sec. 79. Section 31 of the same act required the clerk of each 'county to make out and deliver to the assessor an assessment roll of lands and town lots within his county, to be compiled from the books in his office, containing a description of each tract and lot of real property in his county subject to taxation, and the number of acres or quantity of land contained in each tract, except town or city lots, with the name of the owner thereof, if known; and in making out such assessment roll, to place each separate parcel of land in each township, according to the numerical order of the sections, and each town or city lot according to the numerical order of the lots and blocks, etc. Each assessor was required to ascertain and set down opposite each tract of land in the assessment roll furnished him by the clerk, the value thereof, etc. Id., sec. 7, 25, 26. The lands in question were assessed under the provisions of this act. The tax deed shows that the assessor of Saline county returned his list October 6, 1868, for that year. The collector was required to offer for sale at public auction, separately, each tract of land or town lot contained in the advertisement, etc., on which the taxes, penalty, and costs had not been paid. Id., sec. 50. So by the supplemental act of February 19, 1869. By sec. 50 of the act of July 23, 1868, the person offering at the sale to pay the taxes, penalty, and costs charged on a tract or lot for the least quantity thereof, was to be the purchaser of such quantity, as under former statutes. But by the supplemental act of February 19, 1869, when the proceeds of the sale of one or more tracts taxed to any person were sufficient to pay the taxes, penalty, costs, etc., charged against the delinquent lands of any such person, and he had still other tracts more than necessary to pay such taxes, etc., the excess was not to be sold. Sec. 16, etc. |