Fairbank v. Douglas , 188 Ark. 224 ( 1933 )

STATEMENT BY THE COURT.

In May, 1926, one M. H. Robinson, and wife, mortgaged their homestead in the city of Blytheville, Arkansas, to Bankers' Mortgage Company, which company thereafter transferred and assigned said mortgage and evidentiary notes to appellants. The debt secured was $5,000.

The State, county, municipal and other general taxes accruing to the State and its subdivisions for the year 1926 were not paid by the owner, or by any one for him, and in June, 1927, said lands were forfeited and sold to the State because thereof.

This property was assessed for betterments or benefits in Paving District No. 1, and also in Sewer Improvement District No. 1, of the city of Blytheville, and these benefit assessments were not paid for the year 1927. The paving district instituted foreclosure proceedings in the early part of 1928, but did not proceed to the confirmation of the sale. Therefore this proceeding and the interest of the paving district, in so far as this case is concerned, passes out of the picture.

On September 24, 1928, a decree of foreclosure was entered by the chancery court of Mississippi County in favor of Sewer Improvement District No. 1, in which this property was directed sold for the past-due 1927 assessment. Under this decree, the lands were offered for sale and sold to Sewer Improvement District No. 1 on September 17, 1929; and thereafter, to-wit, on September 24, 1929, said sale was in all things approved and confirmed by the chancery court, and on November 18, 1929, a deed was executed in pursuance thereof to Sewer Improvement District No. 1, which deed was approved by the court.

Thereafter, on August 31, 1932, appellee, Mrs. Lois L. Douglas, the wife of Frank C. Douglas, purchased this property from Sewer Improvement District No. 1, paying therefor the accrued and past-due assessments of benefits.

Frank C. Douglas, the husband of Lois L. Douglas, purchaser from the sewer district as aforesaid, is now, and has been since its organization, the attorney for said sewer district.

This suit was instituted by appellants to foreclose the Robinson mortgage, and Mrs. Douglas was made defendant therein because of her apparent outstanding and conflicting title. Mrs. Douglas answered, asserting her title to the effect as hereinbefore indicated. Thereafter, and prior to the determination of said cause, certain citizens and taxpayers in Sewer Improvement District No. 1 intervened in said cause and alleged that the sale by the sewer improvement district to Mrs. Douglas was improvident and void.

On the trial of said cause, after hearing the testimony which established the facts herein set out, the chancellor dismissed appellants' complaint for want of equity, and this appeal is prosecuted from that decree. (after stating the facts). Appellants' first contention is that the sale to Sewer Improvement District No. 1 on September 17, 1928, was void, because, on the date of the sale to the sewer district, title to the property was in the State, because of the forfeiture and sale to the State on June 12, 1927, for nonpayment of taxes for 1926. It is stipulated between counsel for appellant and counsel for appellee that the county clerk of the Chickasawba District of Mississippi County, wherein the lands are situated, has kept no record of the list of delinquent lands and notice of payment of taxes of delinquent lands in said district since 1924. Section 10,085 of Crawford Moses' Digest, after providing for the form of notice to be attached to the delinquent land list to be sold by the county clerk, provides:

"The clerk of the county court shall record said list and notice in a book to be by him kept for the purpose," etc.

The requirements provided for in 10,085 of Crawford Moses' Digest have been held to be mandatory. Hunter v. Gardner, 74 Ark. 583, 86 S.W. 426; Earle v. Harris, 121 Ark. 621, 182 S.W. 283; Osceola Land Co. v. Chicago Mill Lumber Co., 184 Ark. 1, 41 S.W.2d 759.

It will thus be seen that the failure of the county clerk of the Chickasawba district of Mississippi County to record the list of delinquent lands voided the collector's sale, which occurred on June 12, 1927.

We held in Tallman v. Board of Commissioners of Northern Road Improvement District of Arkansas County, 185 Ark. 851, 49 S.W.2d 1039: "We have heretofore held that, when lands have been sold to the State, the lien for assessments was suspended, and could be enforced after the lands went back to private ownership. Of course, this meant a valid sale. A void sale would not suspend the statute, because, if void, it is a nullity, binding on no one."

Since the forfeiture and sale of the lands in this controversy to the State in June, 1927, for nonpayment of taxes for 1926 is determined to be void for noncompliance with 10,085 of Crawford Moses Digest, and, since this court has decided that a void tax sale does not suspend improvement district taxes and the enforcement thereof, it naturally follows that the sale in the instant case to the sewer district in September, 1929, was, and is, a valid sale.

It is insisted on behalf of appellant that the doctrine as announced in the Tallman case has no application to the facts of this case. The contention is that the assessment of benefits upon which the sale was effected to the sewer district was not due or payable in June, 1927, at the time of the forfeit to the State, therefore it is said that the sewer district was not such interested party as could bring in question the invalidity of the sale to the State. The case of Hopper v. Chandler, 183 Ark. 469, 36 S.W.2d 398, is called to our attention. It is true that we used the following language in reasoning out the conclusion reached in that case:

"In order to question the validity of the tax title, the plaintiff must show that those under whom it holds were the owners of the land or had some interest in it at the time it was sold for taxes. (Citing cases.)

"At the time of the sale for taxes, the appellant had no interest and claimed no interest, and, so far as the record shows, there were no assessments due to improvement District No. 4 at the time this land was certified to the State. It therefore appears that, at the time of the forfeiture and sale for taxes, neither the appellant nor the improvement district had any claim against this land, and, as the title was apparently in the State at the time of the sale under the decree of the chancery court, the chancery sale was void, and the court below was correct in so holding, and the decree must therefore be affirmed."

The language used to the effect; "There were no assessments due to Improvement District No. 4 at the time this land was certified to the State. It therefore appears that, at the time of the forfeiture and sale for taxes, neither the appellant nor the improvement district had any claim against this land," after a careful analysis, is merely dictum, and was not necessary to the conclusion reached. On the contrary, we understand the law to be that an improvement district, holding assessments of benefits against lands within the boundaries of its district, is an interested party in contemplation of law, which can bring in question the invalidity of any tax sale or forfeiture, and this is true even though the yearly assessment of benefits is not due. The position of an improvement district is analogous to that of a mortgagee of real property. It is uniformly held that a mortgagee of real property may do any act or perform any duty in reference to the protection of title or redemption from sales that can be done or performed by the owner. For this rule to have full application, it is not necessary that the debt secured by the mortgagee be due, or any part thereof, because the status of the parties is established by the execution and delivery of the mortgage. Since we have reached the conclusion that the judicial sale of the property in controversy to Sewer Improvement District No. 1 is a valid sale, it necessarily follows that the decree of the trial court dismissing appellant mortgagees' complaint for want of equity must be affirmed.

Regardless of this result, however, it is insisted that the sale by the sewer district of the lands in controversy to Mrs. Douglas is against public policy and void. It is practically admitted that Robinson's mortgagee cannot raise or insist upon this question. The question can be and is raised, however, by a citizen and taxpayer of the district, who intervened in said cause, and we now proceed to determine it. The first insistence on this question is that the sale to Mrs. Douglas was for an insufficient and inadequate consideration. Improvement districts are not engaged in the real estate business. Their paramount duty is to collect assessments of benefits and remit the proceeds to the bondholders. It is not contemplated in law that improvement districts will purchase lands with the view of making profits thereon. When the district disposes of lands acquired by it for an amount aggregating all past-due assessments, prima facie the law has been satisfied. We know of, and have been cited to, no case holding to the contrary. In Arkansas-Louisiana Highway Improvement District v. Pickens, 169 Ark. 603,276 S.W. 355, we stated the rule as follows:

"The theory is, and the practice should be, in order to comply with the spirit of the scheme, for the commissioners in selling the land to secure a sufficient price at least to cover the expenses and all of the delinquent assessments up to the time of the resale, so that the lands will bear their full share of the burden of the expense of the improvement."

The fact is, in the more recent case of Oliver v. Gann,183 Ark. 959, 39 S.W.2d 521, quoting from the first headnote, we held: "Drainage districts may sell land forfeited for nonpayment of assessments for an amount less than would have been required to redeem the land."

When an improvement district disposes of lands held by it for an amount equal to, or in excess of the accrued taxes, we are unwilling to say that such sale is improvident or fraudulent.

It is next said that Mrs. Douglas could not become the purchaser of the lands from the sewer district. This contention is grounded upon the fact that her husband was the attorney for the district. We know of no rule of law, and none has been cited by counsel, to this effect.

It follows from what we have said that the decree of the chancery court should in all things be affirmed.