Kinsworthy v. Mitchell

21 Ark. 145

• Court: Supreme Court of Arkansas
• Decided: January 15, 1860
• Status: Published

Opinions

Mr. Justice Compton

delivered the opinion of the Court.

The bill in this case was brought by Ezekiel and Burton H. Ivinsworthy for confirmation of the sale of certain tracts of land described as the west half of section 6, north-west quarter of section 7, and the south half north-east quarter of section 27, township 13 south of range 25 west, which had been sold by the sheriff for the taxes assessed thereon, for the years 1848 to 1851, inclusive.

Charles B. Mitchell and wife Margaret A., appeared and answered the bill. They urged several objections to the validity of the sale, set up title in themselves, and making their answer a cross-bill, prayed that their title might be quieted, etc.

On the final hearing the court decreed the relief sought by the original bill as to all of the lands in controversy, except the south half north-east quarter of section 27, as to which the sale was declared void, and the court being of opinion that the title thereto was in the said Charles B. Mitchell, quieted the same. From this decree both parties appealed.

1. The first objection urged to the tax title is that the lands were not assessed by an officer legally authorized to make the assessment.

It appears from the testimony bearing upon this point, that the County Court, at January term, 1850, made the following order:

The court being satisfied from the representations of John B. Sandefur, as sheriff of Hempstead county, as well as from other sources of information, that there are many tracts of land ljing in the county, owned by citizens and non-residents of this State, which had not, for many years past, been furnished to the assessor of said county, and on which no' taxes have accrued to the county revenue, and it being a work of much difficulty to ascertain a correct list of said lands — which the sheriff states he is unable to perform. It is therefore ordered by the court, that for the purpose of securing to the county the benefit of the taxes due on said lands hereafter, that Daniel 22. Williams, esq., shall be entitled to receive all the taxes now due, and which may become due for the year 1850, when collected, on any and all lands lying in Hempstead county, and which are not now regularly assessed for taxation, provided he furnish the sheriff with a correct list thereof, from the public surveys, entries, maps and records of this county.”

Pursuant to this order Williams made a list which he verified by affidavit, and filed in the clerk’s office. ' In form, it was an . assessment list, and embraced, among others, the lands in controversy. At July term, 1860, it was laid before the County Court, and the court, after fixing the rate of the State and county taxes to be levied on the assessed value of the lands, ordered the clerk to make out duplicate tax lists “ in the same manner as in other cases,” one of which was to be forwarded to the auditor of public accounts, and the other delivered to the collector of the county revenue, with the usual warrant thereto attached.

The County Court, however, seems to have doubted the legality of these proceedings, and at October term, 1850, made the following order.

” Whereas, it appearing to the court, that there is likely to arise difficulty and contention with various persons charged with back taxes in the supplemental assessment and tax list, made under a former order of this court, by Daniel E. Williams, who was appointed for that purpose, growing out of the fact that the laws of this State are vague and indefinite on this subject, and do not authorize or prescribe the mode or time of making supplemental assessments, and the court not being fully informed of its legal powers in this behalf, nor of the validity of said supplemental tax list, and it further appearing that a large number of,the debtors have positively refused payment as charged in said list, and the court not wishing to involve the collector and such delinquent debtors in expensive and vexatious suits atdaw, to ascertain the legal effect of the said sup plemental tax list, and the time being near at hand, when al! such delinquents can be presented on the regular annual assesment list for the year 1851, under the general provisions of the revenue law of the State. It is, therefore, ordered by the court that John B. Sandefur, as sheriff and cx-officio collector of Hempstead county, be authorized and directed to desist and suspend all efforts to make collection of the taxes as charged in said list, and that he be held responsible to the county for such sums only as he may have received by the voluntary payment by persons charged — and the court, in view of all the facts, would recommend to the Auditor and Treasurer of the State, the adoption of the same rule of settlement as to said supplemental list — and that this order be duly certified to the Auditor and Treasurer of the State.”

In the regular assessment list for 1851, the lands in controversy were listed, not only for that year, but also for 1850, 1849 and 1848, as lands belonging to non-residents; and the assessor states in his deposition, that in thus listing and assessing the lands, he copied from the list previously made out by Williams, and that he listed and assessed them for taxation in no other way — the agent of Mrs. Mitchell having furnished him a list of her taxable property, but failed to embrace in it the lands claimed by her in this suit.

That the list made by Williams was not, according to our revenue law, a valid assessment, is too plain for discussion. It was simply void. The lands, however, were not sold under this assessment, and the real question is, whether the act of copying from Williams’ list into the regular assessment list for 1851, under which they were sold, vitiated the assessment. It is insisted that it did, and the argument is, that the owner of land, whether he be resident or non-resident, is entitled to have his land assessed according to its value, with a view to quality and fertility of soil, local .advantages, and the improvements thereon, which implies a personal knowledge of each tract of land assessed, and which the assessor cannot be supposed to have without personal observation and examination.

To determine this question, it is necessary to refer to our statutory provisions touching the manner in which the value of lands assessed for taxation is to be ascertained. ,

Sections 14, 15 and 16 (Gould’s Dig. chap. 148,) make it the duty of each resident tax payer to give to the assessor a description of all his taxable property — describing each tract, lot or parcel of land separately — with its value, and when the assessor has made a schedule thereof, it is to be sworn to by the tax payer, or his agent, as being the full amount of property owned by him subject to taxation, together with its true value.

By section 20, it is provided that if the tax payer neglect or refuse, when called on, to furnish the assessor with a list of his taxable property, as required by law, or if the assessor have reason to believe that the list so furnished is fraudulent, or does not contain a correct list of the property owned by such person, the assessor shall ascertain, by the best means in his power, the taxable property and the value thereof, and, as a penalty for such neglect, shall assess it at double its value. Sections 2d, 25 and 29 provide that each non-resident owner of land shall, on or before the 25th day of March, in each year, file or cause to be filed in the office of the Auditor of Public Accounts, or with the assessor of the proper county, verified by the oath of himself or agent, an accurate list and description of his lands, with the local advantages thereof, and the number of acres in each tract; and that if he fail to do so, the assessor shall ascertain, by the best means in his power,.what lands, in his county, are owned by such non-resident, and their value, and assess the same at double value, as a penalty for non-compliance with the provisions of the act.

From these provisions, which were in force at the time the assessment in question was made, it will be perceived that where the resident or non-resident owner failed to furnish a list of his lands subject to taxation, as required by law, it was made the duty of the assessor to ascertain their value as he best could. The Legislature had prescribed no mode in which he was to discharge this duty, as, whether by actual personal examination, or otherwise — had indicated no particular source or means of information, and required him to avail himself of it; and the courts will not undertake to do what the Legislature alone could have done, and did not do. In the language of the act, the assessor was to get the information by the best means in his power.” What those means were, was left to his sound discretion, exercised under the sanction of his official oath. In the case before us, the County Court ceased to treat the list made by Williams as a valid assessment. It remained on file, however, in the clerk’s office, and the assessor in making out his list for 1851, availed himself of the information it contained. That was all the act of copying amounted to, and the Court is of opinion it impaired in no way the validity of the assessment, and, besides this, it is not pretended that an excessive valuation was put upon the lands.

2. The second and third objections may be considered together. They are, that the lands were assessed to non-residents, who had no title thereto, and not to the owners, who resided in the county, and had sufficient personal property to pay the taxes; and that the collector sold the lands without first demanding the taxes,"or resorting to the personalty.

There is nothing in these objections.

In Merrick & Fenno vs. Hutt, 15 Ark. 331, in which the validity of a tax title was involved, it appeared that the land had been assessed in the name of James Daniels as a nonresident, and also that of James T. Stark, who was a resident_ The latter was the equitable owner of the land, the naked legal title being in one Lindsey. It did not appear that Daniels had any right to the lands. He was, however, a non-resident, and the land was proceeded against for the taxes of 1840 as his property, It was advertised and offered for sale as such, at the time and place prescribed by law, and there being no bidders it was forfeited to the State in the name of Daniels. The taxes for 1840 were not paid on it fey any one, either as the property of Daniels or Stark, nor did it appear that any steps had been taken that year to collect the taxes from Stark, who was shown to have been able to pay them. The land remaining unredeemed for two years, was sold by the Auditor for the taxes, and Hutt became the purchaser. In- that case, the identical-objections which we are now considering, were pressed in argument, and the Court said:

“ The objection principally urged against his” (Hutt's) ''title, is, that Daniels was not the owner of the lot at all, and that it was improperly taxed in his name, and that the sale to Hurt was void. But the statute answers that objection, by declaring that ‘ no sale- of any lands or town lots, for the payment of taxes, shall be considered invalid on account of its having been charged on the tax book in any other name than that of the rightful owner, if such land or lot be in other respects sufficiently-described in the tax book, and the taxes, for which the same is sold, be due and unpaid, at the time of such sale.’ Dig. 952.

“ This provision is founded in sound policy. In the new States, where lands are cheap and abundant, and there is almost an entire absence of that strong attachment to the soil, which exists, in a striking degree, in older communities, conveyances of real estate are constant^ made from one to another. The owner to-day ceases to be so to-morrow. If it were necessary to go into questions of actual ownership, the land taxed would indeed be in a precarious condition, since changes of ownership, either real or simulated, would render the collection of a tax difficult, if not impracticable. The name of the owner is comparatively unimportant. The description of the land in such manner as that it may be identified, and the non-payment of the tax, are the two considerations of the most importance in a tax sale. Indeed, the latter is vital, because no matter how formal and exact the proceedings may have been, whenever it is made to appear that the taxes have been paid by any one, the sale is utterly void. The authority to sell is founded on the fact of non-payment. The statute intended to divest the title of the former owner for the nonpayment of the tax, and for that only. The particular land taxed stands liable for it, no matter who may be owner, or into whosoever hands the lands may pass. The State has, by express legislation, made the tax on lands a charge against them, notwithstanding any change of title by deed, judgment or otherwise. 948.) And this is not only constitutional, but entirely proper, in any point of view in which it may be considered. It is a proper preference for a State to give herself, in order to insure certainty in the collection of the means necessary to carry on the government. * * * * * * If the statute is to be enforced at all, this objection to the title of Hutt, acquired at tax sale, cannot prevail; for it was to meet such cases that the provision was made as to taxing property in the name of a person not the true owner. *' * * * * * The law requires the owners of land to see that the taxes are paid; and if they neglect it, they, or any one claiming under them, have no right to complain of the consequences of their own negligence. If, for disregarding the first and highest obligation a citizen owes the State, the loss of his property, charged with the tax, shall seem a disproportionate penalty, it must be remembered that to excuse it would produce the most serious embarrassments, if it did not eventually work the destruction of civil government itself. * * * * * The right to sell does not depend on the fact whether the property is taxed in the name of the rightful owner, but on the fact that the taxes are due and unpaid; and that the land is chargt d with them, to which charge or lien all claims or pretensions must, yield, and of which all persons must take notice at their peril.”

The lands, in the case before the Court, having been assessed to non-residents, who had no title to them, instead of the owners — and we have seen that this did not invalidate the assessment — the law did not require the collector to look to the owners, or sell their personal estate for the taxes, as is required "by sections 66 and 107, chap. 148, Gould’s Dig., in cases where the lands are assessed to residents, even though the owners resided in the county; but required him to proceed at once against the lands as the property of non-residents, in the manner prescribed by the statute, without making it necessary that he should first demand the taxes or resort to the personalty. See Eng. Dig., sees. 95, 96, et seq. He was required to proceed against the lands as they were assessed, and not otherwise. What authority had he to demand the taxes of the rightful owners, or to sell their goods in such a case? Was he not to act in conformity to the tax book, which was but a copy of the assessment? See Gossett vs. Kent, 19 Ark. 602, where the mode of selling the lands of resident and non-resident taxpayers for the non-payment of taxes, is discussed.

3. The objection that the several tracts were not' sold separately, each for its own taxes, has no foundation in .fact.

4. The remaining objection applies to the south half of the north-east quarter of sec. 27 only. It appears that this tract was assessed for 1850 and 1851 to Mitchell, who claimed to be the proprietor, and paid the taxes for those years. It was also assessed to S. Gray or Matthew Gray’s Heirs, as non-residents, and sold under the latter assessment for the taxes of 1848 to 1851 inclusive. The result was a sale of the land for the taxes for four years, when the taxes for two years only remained unpaid. This was an irregularity which rendered the sale void as to this tract. The law provides that the person offering at the sale to pay the-taxes and penalty charged on any tract or lot of land, for the least quantity thereof, shall be- the purchaser of such quantity. Dig., sec. 119. In view of this provision, if the sale, when made for a greater amount of taxes than was really due and unpaid, were held valid, cases would constantly occur where a greater quantity would have to be sold for the payment of the taxes claimed, than it would be necessary to sell if the correct amount were charged. See Stitson vs. Kempton, 13 Mass. 282; Elwell vs. Shaw, 1 Greenleaf 339.

It is insisted, however, for the complainants in the original bill, that Mitchell is estopped to deny the validity of their title. And of this opinion is the Court. At the sale for taxes Mitchell became the purchaser of the land, believing it to be his owdj and took a certificate of purchase, which he afterwards, for a valuable consideration, assigned to Williams, who, on producing to the collector the certificate thus assigned, obtained from him a deed to the land, bearing date the 20th November, 1852; and Williams, by deed of the 17th of November, 1853, conveyed to the complainants.

A clearer case for an application of the doctrine of estoppel in pais, does not often occur. Technical estoppels are by deed or matter of record. But there are other acts and admissions less solemn, which may have the force to conclude the party, and are said to operate as estoppels in pais. The general rule is, that when a party, either by his declaration or conduct, induces a third person to act in a particular manner, he will not afterward be permitted to deny the truth of the admission, if the consequence would be injurious to such third person, or to sc me one claiming under him. This rule, in its application to business transactions, is founded in principles of practical morality and fair dealing. And no portion of the law of equitable estoppel is of more importance than that which applies, when a sale made without authority or title, • is sanctioned at the time or ratified afterwards by the owner, and makes the title of the purchaser valid, by imposing silence on the only person entitled to contest it. See Welland Canal Co. vs. Hathaway, 8 Wend. 483; Reid vs. Hensley, 2 B. Monroe 254; Chapman vs. Searle, 3 Pick. 38; Bird vs. Benton, 2 Dev. 179; Governor vs. Freeman, 4 Ib. 472; Stonard vs. Duncan, 2 Campb. 344; Pickard vs. Scars, 6 Adolph. & Ellis, 469; Gregg vs. Wells, 10 Ib. 90.

By the assignment of Ihe certificate Mitchell induced Williams to pay out his money and accept what the proof shows both parties then regarded as a good title to the land; and Mitchell will not now be permitted, on refunding the purchase money, as he proposes to do, to assail and defeat the title of those claiming under Williams, upon the ground that the sale was void. Such would be an injury to the complainants, which the law does not tolerate.

It results that so much of the decree as confirms the title of the complainants to a part of the land in controversy, must be affirmed; and so much thereof as declares the tax sale void as to the south half of the north-east quarter of section 27, must be reversed, and a decree entered here confirming the title of the complainants to this tract also, and certified to the court below.