# Lumsden v. Erstine > Supreme Court of Arkansas · June 7, 1943 · 205 Ark. 1004 URL: https://www.frixlaw.com/law-library/cases/3272710 ## Case - **Full name:** Lumsden v. Erstine. - **Court:** Supreme Court of Arkansas - **Decided:** June 7, 1943 - **Citations:** 205 Ark. 1004; 172 S.W.2d 409; 147 A.L.R. 1132; 1943 Ark. LEXIS 281 - **Precedential status:** Published - **Opinion:** Dissent by Smith - **Judges:** Air, Holt, McFaddin, Smith - **Cited by:** 27 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3272710 ## Opinion text Smith, J., (dissenting). The state government must function, but, to do so, it'must have the necessary revenue. For many years these revenues were derived chiefly from the ad valorem taxes assessed against and collected upon property both real and personal. Later, and from time to time, additional sources of revenue have been provided, but the ad- valorem tax remains a sub-, stantial and essential part of the state’s revenues. The method provided by law for the- enforcement of the payment of the taxes on real estate is to sell the land on which the owner had failed, or refused, to pay the delinquent taxes. The reluctance of the courts to see one lose his land for the taxes due thereon was such that the policy of the courts was to hold these sales void for an innumerable number of reasons, many more or less frivolous, but the policy was fixed to require an exact and literal compliance with the law, otherwise the sale was held to be invalid. In this connection it may be said that the many opinions on this subject have used the words “void” and “voidable” interchangeably. Possibly the most frequent ground on which tax sales.have been held to be void was that excessive costs of sale had been charged. This was, of course, a substantial and not a frivolous reason. • Tax sales were so uniformly held bad that they ceased to be seriously regarded by many persons who paid taxes only when convenient to do so, if at all. The late Justice Baker, in the opinion in the case of Berry v. Davidson, 199 Ark. 276 , 133 S. W. 2d 442 , adverted to this fact and, after stating “that it was thought by many that people need not pay taxes if they were willing to meet the worry and expenses of litigation in regard thereto” he proceeded to review the legislation leading to the enactment of Act 119 of the Acts of 1935. He there, for the court, reaffirmed the holding in the case of Fuller v. Wilkinson, 198 Ark. 102 , 128 S. W. 2d 251 , the reaffirmation being to the effect that decrees of confirmation rendered in accordance with Act 119, supra, were impervious to attack, save only in cases where there was lacking the power to sell for the taxes. When is the power to sell lacking? This lack of power exists in cases like Fuller v. Wilkinson, supra, where the land was sold for a non-existent tax. In other words, it is essential that there be a tax for which the land may be sold. Another class of cases in which the poAver to sell is lacking is Avhere the property sold was not subject to taxation, or Avas exempt from taxation under' § 5-of art. XVI of the Constitution. Winn v. Little Rock, 165 Ark. 11 , 262 S. W 988. In that case a cemetery had been sold for taxes. In all these cases, that is, where the power to sell is lacking, it is held that confirmation does not cure the tax sale. This for the reason that the court rendering the confirmation decree lacked the jurisdiction to confirm a sale made in a case where the power to sell was lacking. But in all other cases, that is, cases in which the power to sell existed, however irregularly that power may have been exercised, the' confirmation decree cured the sale. Such Avas and is the purpose and effect of our confirmation statutes and, if this be not the effect of a confirmation decree, then the exercise of the poAver conferred by the confirmation statutes is futile. After pointing out in the case of Fuller v. Wilkinson, supra, that the confirmation Act 296, passed in 1929, cured only “informalities” and “irregularities,” it was said: “Noav, Act 119 is not thus restricted, and we think the effect of confirmation decrees, rendered pursuant to' its provisions, is to cure all tax sales where there was not lacking poAver to sell, that is, all sales for taxes which Avere dueand had not been'paid.” In the case of Berry v. Davidson, supra, Justice Baker, for the court, said: “If there are any taxes levied or .assessed against the land, however defectively that may have been done, and when the taxes shall not have been paid, the state has the power to sell.” In the case of Commercial National Bank v. Cole, 200 Ark. 212 , 138 S. W. 2d 794 , a headnote, fully sustained by the text of that opinion which it summarizes, reads as folloAvs: “Where a valid tax has been imposed and has not been paid, the porver to sell exists.” These holdings Avere reaffirmed in the case of Redfern v. Dalton, 201 Ark. 359 , 144 S. W. 2d 713 , where (quoting a headnote) it Avas said: “The power to sell for nonpayment of taxes exists when a valid tax has been ixnposed axxd has not beeix paid. ’ ’ These holdings were reaffirmed in the case of Faulkner v. Binns, 202 Ark. 457 , 151 S. W. 2d 101 , in which case a headnote reads as follows: ■ “The effect of a confirmatioix decree rendered pursuant to, the provisions of Act 119 of 1935 is to cure all tax sales where there was not lacking the power to sell, that is, all sales for taxes which were due and had not been paid. ’ ’ These cases were reviewed and these holdings reaffirmed iix the case of Schuman v. Walthour, 204 Ark. 634 , 163 S. W. 2d 517 , with the qualifications, more apparent than real, that a confirmation decree is not res judicata of the validity of the sale where the land was sold for a tax in excess of the constitutioxial limit. That holding, however, is ixot out of line with the other cases just cited, as its effect is that a confirmation decree is not imperviorxs where the land was sold for a tax ixot due, axxd a tax iix excess of the constitxxtioxxal limit is, of course, a tax xxot due. The effect of these cases may be sxxmmarized as follows: to coxxstitute power to sell there must be a law imposing a valid tax upon property subject to the tax, which tax has xxot been paid. When these coxxditioxxs exist the power to sell exists axxd a coxxfirmatioxx of such a sale xuxder tixe provisioxxs of § 9 of Act 119 of the Acts of 1935 vests iix the State a title which “shall be considered as confirmed axxd complete in the State forever ’ ’ with certain exceptions not present in this case. Another exception, also more apparent than real, where the confirmation decree does not vest a title “complete in the State forever” is where the description of the land is so indefinite that it describes nothing. In other words, something must be sold axxd the property sold must be so described that it may be identified. Dansby v. Weeks, 199 Ark. 497 , 135 S. W. 2d 62 . Now, as has been said, this court has held that many and various irregularities invalidate tax sales and one of the most common irregularities is the charging of excessive costs. The majority opinion cites text writers who say uniformly that charging excessive costs renders the sale invalid and the rule cle minimis does not apply, provided the excess charged exceeds the smallest coin we have in circulation. Kinney v. Duggan, 199 Ark. 396 , 133 S. W. 2d 878 . It was unnecessary to consult the text writers on this subject, as our own cases have definitely and repeatedly held that charging excessive costs renders the tax sale invalid, and the majority opinion cites some of these cases, and there are others. But the text writers and our own cases were referring to sales not confirmed and no text is cited, or opinion found, by the majority, which holds, that charging excessive costs is a defect which confirmation will not cure. Of course, charging excessive costs invalidated the sale and it is for that reason that confirmation is necessary, and the effect of the confirmation is to cure this defect. If this is not true, then many decrees which have confirmed invalid tax sales are themselves rendered void and of no effect. The power to charge costs in the tax sales is not lacking, but is expressly conferred by statute. There has been some uncertainty, and a lack of uniformity, in the amount of costs chargeable in the various counties; and, in many instances, this power has been abused by charging more costs than the law allowed, but 'in ail cases the power to charge costs was existent and was never lacking. The case of charging excessive costs is the mere irregular exercise of a power, and is not the exercise of a power which is non-existent, as is the case of selling land for a non-existent tax, or of selling property so defectively described that it may not be identified, or of selling property exempt from taxation, as a graveyard, or otherwise exempt from taxation under the provisions of § 5 of art. XVI of the Constitution. Now, the text writers say, and the cases hold somewhat loosely, that there is no power to sell lands on which the taxes had been paid. Certainly any court would hold, as this court has frequently held, that a sale for taxes previously paid was void, but the distinction which this court has .pointed out is that a sale for taxes already paid is not a jurisdictional defect, as is the sale-of land not subject to the tax, or for a non-existent tax, or under a description which is void and describes nothing. The first of these cases is that of Wallace v. Brown, 22 Ark. 118 , 76 Am. Dec. 42 .1, in which case the headnotes read as follows: “If a collector proceeds to sell land after the taxes charged upon it have been pa,id, the sale is without power and a fraud upon the owner’s rights; and this fraud enters into and vitiates a decree of confirmation under the statute; and this court would be slow to hold that the owner, having no actual notice of the proceedings to confirm, could not vacate the decree and cancel the deed of the purchaser in a direct and appropriate proceeding for that purpose: “But when such a decree is offered in evidence in a collateral suit, the owner of the land will not be permitted to go behind the decree, introduce evidence of the payment of the taxes before the sale, and for that reason cause the decree to be treated as null and void.” Now, the present suit' is a collateral attack upon the confirmation decree and any matter which was adjudged in that decree, or might have been, is concluded by it, as the court had the jurisdiction to decide the question. The holding in this case of Wallace v. Brown, supra, as reflected in the headnotes above copied, was modified by the opinion in the case of Worthen v. Ratcliffe, 42 Ark. 330 , where it was said: “But, in truth, every question with respect to the assessment of the land in controversy, or the non-payment of taxes, or the regularity of the proceedings of the sheriff and collector, is concluded by that decree; provided the court which rendered it had jurisdiction of the petition, and provided the decree was not obtained by a fraudulent misrepresentation or concealment of facts. Thomas v. Lawson, 21 How. 331 , 16 L. Ed. 82 ; Buckingham v. Hallett, 24 Ark. 519 .” The following cases are to the same effect: Worthen v. Ratcliffe, 42 Ark. 330 ; Williamson v. Mimms, 49 Ark. 336 , 5 S. W. 320 ; McCarter v. Neil, 50 Ark. 188 , 6 S. W. 731 ; Boehm v. Botsford, 52 Ark. 400 , 12 S. W. 786 ; Burcham v. Terry, 55 Ark. 398 , 18 S. W. 458 , 29 Am. St. Rep. 42 ; Lonergan v. Baber, 59 Ark. 15 , 26 S. W. 13 ; Martin v. Hawkins, 62 Ark. 421 , 35 S. W. 1104 ; Pattison v. Smith, 94 Ark. 588 , 127 S. W. 983 ; Porter v. Dooley, 66 Ark. 1 , 49 S. W. 1083 . Tlie confirmation decree imports the finding that the taxes had not been paid, as this is the very basis of the confirmation suit. So also is the irregularity of the proceedings of the officers conducting the tax sale in charging excessive costs. The costs charged is a matter of record apparent from the record and is not concealed, and the question whether excessive costs were charged is one of those questions of fact concluded by the decree of confirmation, because the court rendering the decree had the jurisdiction to determine the' questions. Not so with a void description, which is nothing, and not so with a sale for a non-existent tax, or of exempt property, which would not be rendered in those cases except that only by a fraudulent misrepresentation, or the concealment of facts', would a decree be rendered in the class of cases last mentioned;- but the charging of excessive costs was only an irregula'rity and hot a jurisdictional defect relating to the power to sell. The land is sold for the tax and the cost is a mere incident of the sale, and has no relation to the power to sell for the taxes. We conclude, therefore, that the court in rendering the confirmation decree had the jurisdiction to determine whether excessive costs of sale were charged, and the rendition of the confirmation decree is conclusive that excessive costs were not charged, this being a question of fact which the court had the jurisdiction to determine. Act 423 of the Acts of 1941, p. 1227, furnishes uo support to the majority opinion. It does provide that nothing in the confirmation act shall prevent any person attacking the confirmation decree, at any time, on the ground that the taxes have actually been paid. The effect of this provision is to amend the confirmation act by permitting the showing to be made, at any time, that the taxes had been paid. Cases herein above cited are to the effect that a confirmation decree may not be collaterally attacked upon tlie ground tliat the taxes for which the land was sold had in fact been paid. Act 423 now permits this- attack, but it is itself a recognition of the fact that the power exists to confirm a sale although the taxes had been paid, but, notwithstanding- that fact, the act permits the attack, which but for the Act 423, supra, could not be made. However, the majority opinion points out that it was held in the case of Schuman v. Walthour, 204 Ark. 634 , 163 S. W. 2d 517 , that this act was prospective, and not retroactive, and did not apply to confirmation decrees rendered prior to its passage, as was the confirmation decree here attacked. I, therefore, dissent from the holding of the majority that the charge of excessive costs rendered the- confirmation decree invalid. I am authorized to say that the Chief Justice and Air. Justice Holt concur in these views. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3272710. Public record. Not legal advice.