Van Etten v. Daugherty

103 S.W. 737, 83 Ark. 534, 1907 Ark. LEXIS 80

Opinion

Wood, J.,

(after stating the facts.) 1. Appellee and his grantor, Grant, having taken possession of the land in controversy under color of title and having held the same continuously, openly and adversely for more than seven years, as the agreed statement and proof aliunde show, had title to quiet. Elliott v. Pearce, 20 Ark. 508; Cofer v. Brooks, 20 Ark. 542; Pillow v. Roberts, 12 Ark. 822. See Sibly v. Gomillion, 76 Ark. 442.

The actual possession of part of the land under the deed was in law possession to the limit of his grant, and gave appellee’s grantor, and appellee through him, title to the whole. Boynton v. Ashabranner, 75 Ark. 514; Crill v. Hudson, 71 Ark. 390; Sparks v. Parris, 71 Ark. 117.

2. But appellant contends that the decree of the Crittenden Chancery Court of February 14, 1898, and the proceedings thereunder, divested appellee’s grantor, and hence appellee, of title, and vested same in appellant; and that this decree is not open to collateral attack. The decree under which appellant claims title was rendered in a suit instituted by the St. Francis Levee District against the Memphis Land & Timber Company and others to enforce the lien of the levee district for taxes on certain lands situated therein. The suit was pursuant to an act of the General Assembly of 1895, c. 71, amendatory of the act of Eeb. 15, 1893, creating the district, that provides in part as follows: “Said proceedings and judgment shall be in the nature of proceedings 'in rem, and it shall be immaterial that the ownership of said lands may be incorrectly alleged in said proceedings; and said judgment may be enforced wholly against said land, and not against any other property or estate of said defendant. All or any part of said delinquent lands for each of said counties may be included in one suit for each county, instituted for the collection of said delinquent taxes, etc., as aforesaid, and all delinquent owners of said lands, including those unknown as aforesaid, may be included in said one suit as defendants; and notice of the pendency of such suit shall be given as against nonresidents of the county and the unknown owners, respectively, where such suits may be pending, by publication weekly for four weeks, prior to the day of the term of court on which final judgments may be entered for the said sale of said lands.” After setting forth in extenso the form of the notice, giving the nature of the suit and the description of the lands, the act further provides: “Said persons and corporations and all others interested in said lands are hereby notified that they are required by law to appear and make defense to said suit, or the same will be taken for confessed, and judgment final will be entered directing the sale of said lands for the purpose of collecting said delinquent levee tax,” etc. In Ballard v. Hunter, 74 Ark. 174, Mrs. Josephine Ballard brought suit attacking the validity of the same decree under which appellant claims. She alleged that' lands owned by her in the district had been condemned and sold under the decree, that she “was not a party to the foreclosure proceedings, that she was a nonresident of the State, and had no informátion of the pend-ency of the suit,” and- the question raised by these allegations and passed upon by the court was whether notice by publication as against nonresident landowners, as required by the statute, was sufficient to authorize condemnation and sale of the lands where the nonresident was not named as a party defendant to the foreclosure suit. The court, speaking to this point through Mr. Justice Battue, said: “The fact that the lands in controversy were the property of Mrs. Josephine Ballard, and that she was not made a party defendant to the suit instituted to enforce the collection of the taxes thereon, does not affect the decree therein and the sale thereunder. The act provides that such suit and decree shall be in the nature of proceedings in rent, and that it shall be immaterial that the ownership of the lands may be incorrectly alleged in said proceedings.” The court accordingly held that the notice by publication, under the statute, was sufficient to authorize a decree ordering the lands of a nonresident sold for taxes, although the nonresident owner of the lands was not a party to the proceeding.

It is contended by appellant that the principles of Ballard v. Hunter, supra, rule this case. But not so. The court in Ballard v. Hunter was passing upon the facts of that case and the provisions of the statute applicable thereto. Here the facts are entirely different. Appellee’s grantor, who was the owner of the land at the time the decree was rendered ordering same sold for taxes, was a resident of the district, and he or .tenants occupied the land at the time the suit was instituted and decree was rendered. The provisions of the act of 1895 applicable to such cases are as follows:

“As against any defendant who resides in the county where such suit may be brought, and who appears by the record of deeds in said county to be the owner of any of the lands -proceeded against, notice of the pending suit shall be given by the service -of personal summons of the court at least twenty days before the day on which said defendant is required to answer, as set out in said summons. * * * And provided further, actual service of summons shall be had where the defendant is in the county or where there .is an occupant upon the land.” Acts 1895, c. 71, § 1.

These -provisions of the statute are mandatory i-n form and in fact. They require personal actual service of summons upon the resident of the -county in the district who- is shown by the record to be the owner of the land; and if the owner is not a resident, and not in the county, but has an occupant upon the land, then such occupant must be served with summons. In our opinion, the personal service of summons as herein provided is essential to give the court jurisdiction where the lands sought to be -condemned under the act have a resident -record owner, or where -they are occupied. All the provisions of the act must be -construed together. The provisions as to resident record owners and occupants can not be ignored. The act, as construed in Ballard v. Hunter, supra, is a proceeding in rem as to the lands of nonresidents not in the county when the suit is brought and whose lands are unoccupied, and as to unknown owners mentioned therein notice by publication is sufficient as to them. But as to resident record owners or nonresident owners in the county when suit is brought, or occupants, there must be personal service before the lands of such resident record owners or occupied lands can be condemned and sold for the delinquent taxes. While the judgment is in the nature of a proceeding in rem, in that it can only be enforced against the lands and not .against any other property or estate of the defendants, yet, in order to give the court jurisdiction to render the judgment, it is necessary that the mode of obtaining jurisdiction prescribed by the statute be strictly pursued. The proceedings for divesting the owners, resident and nonresident, known and unknown, of their estate in the lands subject to the levee tax derive their only sanction from the statute, and the courts must see that its provisions as to jurisdiction are complied with, or their judgments will be utterly void, and, of course, subject to collateral as well as direct attack. Gibney v. Crawford, 51 Ark. 34. “In statutory proceedings every act which is jurisdictional or of the essence of the proceeding, or prescribed for the benefit of the party affected is mandatory.” Note to Gallup v. Smith, 12 L. R. A. 353-354; Endlich, Int. Stat. § 435; Potter’s Dwarris on Stat. Con. page. 224 note, 26 Am. & Eng. Enc. Raw (2 Ed.) p. 692; Norwegian Street, 81 Pa. St. p. 349, and other authorities cited in appellee’s brief.

In Johnson v. Hunter, 147 Fed. 133, the Circuit Court of Appeals, in passing upon the question of what was necessary to be stated in an affidavit for publication in order to give the court jurisdiction by constructive service of a known nonresident, said: “The conditions are that the defendant must be a nonresident of the county and must be absent therefrom, and that there must not be an occupant upon the land. If the defendant be a resident of the county, or be present therein, or if there be an occupant upon the land, actual service of the summons is required. A defendant may be a nonresident of the county, and yet be present therein so that actual service upon him can be had. If he is so present; the act plainly calls for such service. And a defendant may be a nonresident of the county and absent therefrom, and yet the land be occupied by a tenant or other representative upon whom a summons can be served. If the land is so occupied, the act plainly calls for such service.”

The circuit court for the Eastern District of Arkansas, through Judge Trieber, in Johnson v. Hunter, 127 Fed. Rep. 219, held that “where a sworn complaint in a proceeding to subject nonresident lands to the payment of delinquent taxes alleged that the owner was a nonresident, it was sufficient to authorize service by publication without a separate affidavit of nonresidence.” This decision is in accord with our own decision in Ballard v. Hunter, supra, and the decision of .the Supreme Court of the United States affirming the decision of this court. But neither the circuit court for the Eastern District in Johnson v. Hunter, nor this court in Ballard v. Hunter, considered the question as to whether such verified complaint would give jurisdiction by publication in a case where the nonresident was in the county at the time of the institution of the suit and could have been served with process, or whether such notice by publication would have been sufficient in a case where the land, though owned by a non-resident, was occupied by his tenant. The Circuit Court of Appeals in Johnson v. Hunter, supra, in referring to the decisions of this court in Memphis Land & Timber Co. v. Board of Directors of St. Francis Levee District, 70 Ark. 409; and Ballard v. Hunter, 74 Ark. 174, correctly stated that “in one the question actually considered was whether or not an affidavit for publication was necessary, rather than what it should contain, and in the other it was whether or not a verified'complaint could perform the office of such an affidavit.” We also considered in Ballard v. Hunter the question as to whether a verified complaint which alleged the nonresidence of the defendant was sufficient to authorize service by publication. The Circuit Court of Appeals was in error in stating that in Ballard v. Hunter the court’s attention does not appear to have been directed to the provision, “and provided further actual service of summons shall be had where the defendant is in the county or where there is an occupant upon the land.” Learned counsel for appellants in Ballard v. Hunter did call our attention to the provision, but there was no pretense or contention that appellant Mrs. Ballard was in the county when the suit was brought, so that personal summons could have been upon her, nor was it contended that there was an occupant upon the land. We did not feel called upon therefore to give appellants in that case the benefit of an objection which they were in no position to make because of the conceded facts.

As was said by the Supreme Court of the United States in reviewing that case: “They did not assert that, though nonresidents of the county, they were present therein, or that their lands were occupied by a tenant or other representatives, as was the case in Banks v. St. Francis Levee District, 66 Ark. 490. * * * Plaintiffs in error, it is true, alleged that no ‘sufficient affidavit of the plaintiff’ was filed stating ‘positively or sufficiently any one of the facts’ required to be stated, and that the clerk did not make on the complaint or otherwise any warning order to plaintiffs in error, or to either of them, to appear in the suit as required, or which obliged them to appear therein,' or bound them by the proceedings which were had therein. But there was no allegation that either of them was in the county, or that there was an occupant upon their lands. Not being defendants who were entitled to. personal service, they can not urge against the decree that they were not given personal service, or complain that the complaint was insufficient as an affidavit for service by publication because it did not deny the existence of conditions which there is no pretense existed.” Ballard v. Hunter, 204 U. S. 241.

None of these decisions are in conflict with the view we here announce. In none of them was the question now before us being considered, except indirectly; for in none of them were the defendants, as here, resident record owners or were the lands shown, as here, to be occupied. ‘ The opinion in case of Johnson v. Hunter in Circuit Court of Appeals supports the view here announced, and the case of Ballard v. Hunter in the Supreme Court of the United States, supra, indirectly also sustains the views we take of this statute.

Third. Neither the three nor the five years statute of limitations applies to the facts of this record. The three years statute (Act April 2, 1895, § 1, p. 91,) contains no limitation upon the right to attack a decree that is void for the want of jurisdiction. The five years statute has no application. The action was not to recover possession but to remove cloud. Appellee was in possession. Streett v. Reynolds, 63 Ark. 1.

Decree affirmed.