DICK V. FORAKER, 155 U. S. 404 (1894)

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U.S. Supreme Court

Dick v. Foraker, 155 U.S. 404 (1894)

Dick v. Foraker

No. 89

Submitted November 15, 1894

Decided December 17, 1894

155 U.S. 404


The Circuit Court of the United States for the Eastern District of Arkansas has jurisdiction of a suit in equity, brought by a citizen of Ohio against a citizen of Illinois, to remove a cloud from the title to real estate situated in that district.

Without the statutory notice required by the Arkansas statute of March 12, 1881, No. 39, in proceedings for the fixing of tax liens for unpaid taxes upon lands in the state, and the sale of the lands for the nonpayment thereof, the court can take no jurisdiction, and all proceedings therein are void, and the fact that the state appeared in such a suit where that notice had not been given did not give the court jurisdiction, or render the sale valid.

Action by Joseph B. Foraker against George F. Dick to remove a cloud from his title. Judgment for complainant, and defendant appeals.

The appellee, a citizen of the State of Ohio, brought his complaint in the Circuit Court of the United States for the Eastern District of Arkansas against the appellant, a citizen of the State of Illinois. The bill sought to remove a cloud from a title held by complainant, and charged in substance that under an act of the Legislature of Arkansas approved March 12, 1881, and an act amendatory thereof, approved March 22, 1881, a decree was rendered in the Ashley County Circuit Court directing the sale of certain lands for the purpose of realizing taxes due upon them; that under this decree, a sale was made on September 15, 1884, by a commissioner of the court; that at said sale, the complainant became a purchaser of the property, a description of which was given in the bill; that the proceedings as well as the sale were in accordance with the statute; that the lands thus purchased were not redeemed as prescribed by law and accordingly the court ordered the commissioner to execute a deed therefor, which the commissioner did on May 15, 1887, and the deed was recorded in the proper office; that after this purchase, the defendant (appellant here) purchased through the Commissioner of Lands of the State of Arkansas the said lands from the state, as forfeited for the nonpayment of taxes; that the commissioner wrongfully, and without authority of law, and in disregard of the rights of complainant, executed deeds for the lands to the defendant, which deeds were recorded, and, taken all together, purport to convey all of the land purchased by the complainant under the previous sale to him; that the deeds thus executed to the defendant, while they convey no title, constitute a cloud upon the complainant's title, and their appearance upon the record impairs the value of his property. The bill, moreover, averred that the land was vacant, and in the actual possession of neither complainant nor defendant. The prayer of the bill was that the deeds made to the defendant be cancelled, and that the complainant's title to said land be quieted as against the defendant and all claimants under him. The defendant demurred to the jurisdiction of the court and, upon the overruling of his demurrer, answered, averring the validity of the sale made him by the commissioner of lands and claiming that the sales to the complainant under the proceedings in the Ashley County Court were absolutely void because there was no law authorizing them, because the court had no jurisdiction of the subject matter, and because of fatal irregularities in the proceedings themselves. The court below decreed in favor of the complainant. From this decree, the cause was brought here on appeal.

The defendant's title is derived from a sale made by the Commissioner of Lands of the State of Arkansas, treating the lands as forfeited to the state, this sale having been made subsequent to the proceedings upon which the complainant relied as his muniment of title.

The statutory provisions authorizing the proceedings upon which complainant's title rests are found in the Laws of Arkansas of 1881, page 64, Act of March 12, 1881, No. 39, and read as follows:

"SEC. 1. That hereafter, any citizen of this state who shall give security for cost may file a complaint in equity in the name of the state in the court having equity jurisdiction in the county in which the lands lie setting forth that taxes are

Page 155 U. S. 406

due on lands to be therein described, or that for any reason lands lying in the county have not been assessed for any one or more years, and praying that a lien may be fixed on such lands by a decree of the court for such unpaid taxes, and that the lands may be sold for the payment thereof. The county court of any county may direct such complaint to be filed in the name of the county, and when it shall be filed in pursuance of such direction, it shall be prosecuted by the attorney for the county, or by some attorney to be retained for that purpose."

"SEC. 2. On filing of such complaint, the clerk of the court shall enter on the record an order, which may be in the following form:"

" Arkansas on Relation of _____, Plaintiff v. Certain Lands on Which Taxes are Alleged to be Due, Defendant."

" Now, on this day came said plaintiff, and files here in court his complaint, in which he sets forth that there are certain taxes due on the following lands:"

" [Here insert description of the lands.]"

" Now, therefore, all persons having any right or interest in said lands, or any of them, are required to appear in this court within forty days from this date, then and there to show cause, if any they can, why a lien shall not be declared on said lands for unpaid taxes, and why said lands shall not be sold for nonpayment thereof."

"SEC. 3. The clerk of said court shall at once cause a copy of said order to be published for two insertions in some newspaper published in the county, and, if there is no newspaper published in the county, he shall cause a copy of said order to be posted at the door of the courthouse of the county, or of the room in which the court is held, and such publication shall be taken to be notice to all the world of the contents of the complaint filed as aforesaid, and of the proceedings had under it."

"SEC. 5. At the end of the forty days mentioned in section 2 of this act, the clerk shall enter upon the record a decree pro confesso, covering all lands named in the complaint, regarding which no answer has been filed, which order may be in the following form: "

Page 155 U. S. 407

" State of Arkansas on the Relation of _____, Plaintiff v. Certain Lands on Which Taxes are Alleged to be Due, Defendant."

" It appearing that the order herein made, requiring the owners of the lands in this suit to appear and show cause, if any they could, why a lien should not be declared on certain lands, named in the complaint herein, has been duly published in the manner required by statute, and that no answer has been put in as to the following tracts or parcels of land, that is to say."

"[Here describe the land.]"

" It is now therefore ordered that the complaint be taken as true and confessed as to said lands above described."

In order to make out his case, the complainant offered the record of the proceedings in the Ashley County Circuit Court, from which his title took its origin. The record as offered is in a very imperfect state, but it appears therefrom that on May 4, 1884, on the relation of W. H. Arnold, a bill was filed which, after setting out the above provisions of Arkansas law, substantially averred that upon certain lands described in an exhibit annexed, certain taxes had been extended which were past due and other taxes had been extended which were unauthorized by law; that in pursuance of a warrant for the collection of taxes on these lands, the collector had demanded both the lawful and the unlawful taxes, and neither were paid, and the lands were returned as delinquent and were forfeited and sold to the state for the taxes for which they had been respectively so returned; that the forfeiture and sale to the state were void because unlawful taxes had been extended against the land, and also on account of many other irregularities; that hence the State of Arkansas had no valid title to any of the tracts, but notwithstanding this fact, the state land commissioner had conveyed part of the land standing in the name of the state to such persons as had applied to purchase, and would convey the balance thereof unless the forfeiture was annulled.

This complaint as printed in the record is not complete. It contains no prayer, but the following memorandum is at the foot thereof:

Page 155 U. S. 408

"[Here, the lower part of the complaint having become worn out and destroyed, it is impossible to furnish a copy of the same or the signature to the same.] The complaint was regularly filed, but it is also worn too much to be copied. Clerk."

Annexed to the bill is a list of lands, containing, among others, those which are claimed by the complainant. There is also the following entry in the record:

"No order appointing G. W. Norman and J. W. Van Gilder masters in chancery found on record, and below will be found the docket entry of the same made on the judge's docket, to-wit:"

"Made 9th day of February, 1884, to-wit:"

"George W. Norman and J. W. Van Gilder appointed masters in chancery to extend the taxes on said land before the next term of the court."

"Report of Masters in Chancery"

"June 2, 1884."

"To the Honorable Circuit Court of Ashley County:"

"The undersigned, masters in chancery, appointed to extend the taxes in the case now pending in said court on the relation of W. H. Arnold vs. certain lands upon which it is alleged taxes are due, beg leave to report that they have discharged said duty as follows, by consent of parties representing the state, the county, and the attorneys who brought the suit against said lands:"

"The taxes, penalties, and costs were fixed at 15 cents per acre. Of this amount, four cents is to be paid to the county, two cents to the state, and the balance appropriated to expenses as follows: the attorneys, 3,200 dollars; to clerk, 2,500 dollars; to printer, 1,250 dollars; to com'r, 1,000; to masters in chancery, 1,000, and the excess that may be realized above these amounts be distributed to the state and county in proportion to two to one in favor of the county."

"In making the extension aforesaid, we were of the opinion that the said six cents per acre about covered the average of taxes due on said lands, as the alleged forfeitures occurred at different periods of time. "

Page 155 U. S. 409

"We further report that we are fully satisfied that a sale of the lands embraced in this report thus returned to the tax books, the settling of disputed titles, etc., will inure to the benefit of the entire community, and we further report that we find certain lands marked on the bill were claimed by parties who have made to us satisfactory showing that the said lands were improperly thereon, and that said parties claimed that the taxes thereon had been paid, and that the title of the state to certain other lands was good."

"In each of said cases, we have dismissed said lands, and we desire the record in this case should show said fact of dismissal."

"John W. Van Gilder"

"Geo. W. Norman"

"Filed June 2, 1884"

"E. L. Thomson, Cl'k"

"By Jackson, D.C."

It is to be inferred, of course, that the masters here named were regularly appointed. On June 2, 1894, the following was entered of record:

"It appearing that the order herein made requiring the owners of the lands in this suit to appear and show cause, if any they could, why a lien should not be declared on certain lands named in the complaint herein, has been duly published in the manner required by statute, and that no answer has been put in as to the following tracts or parcels of land, that is to say:"

"[Here follows a description of the land.]"

"And it further appearing that the creditor of the state, the relator, the prosecuting attorney of the 10th Judicial District, and the Judge of the County of Ashley have appeared and consented that a decree should go against the above-described lands for the taxes, penalty, and costs assessed against them as fixed by the master's report filed herein, it is therefore ordered, adjudged, and decreed that the amount of taxes, penalty, and costs above set forth are due on said lands, and that a lien for said taxes, penalty, and costs on said lands be fixed

Page 155 U. S. 410

by this decree, and it is further ordered that if said sum of money so adjudged against said lands shall not be paid within twenty days from the 3d day of June, 1884, the said lands shall be sold by a commissioner to be appointed by the chancellor on the notice and at the place prescribed by law, and it is further ordered that Thos. S. Stilwell be, and he is hereby, appointed as special commissioner of this Court, and that, having made the publication required by law, said commissioner proceed to expose the said lands for sale on Monday, the 21st day of July, 1884, at the courthouse door in the Town of Hamburg, and that said sale continue from day to day till all of said lands be sold, provided that said lands are not to be sold for an amount less than the taxes, penalty, and costs herein assessed against each of said tracts of said lands, and that he report his action herein to the next term of this court. It is further ordered that upon sale aforesaid, said commissioner pay the fees and costs as follows, viz.:"

"To the attorneys, thirty-two hundred and fifty (3,250) dollars; to the clerk, twenty-five hundred (2,500) dollars; to the printer, twelve hundred and fifty (1,250) dollars; to commissioner, one thousand (1,000) dollars, and to the masters, one thousand (1,000) dollars; and, if enough of said _____ are not sold to pay the above sums, that the commissioner pay pro rata."

The execution of this order was postponed by direction of the court; but on September were adjudicated to him, and on May 14 were adjudicated to him, and on May 14, 1887, upon the expiration of the period allowed for the redemption, the commissioner made to complainant a deed, which was approved by the court.

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