# Simpson v. Reinman

> Supreme Court of Arkansas · December 13, 1920 · 146 Ark. 417

URL: https://www.frixlaw.com/law-library/cases/7810798

## Case

- **Full name:** Simpson v. Reinman
- **Court:** Supreme Court of Arkansas
- **Decided:** December 13, 1920
- **Citations:** 146 Ark. 417; 227 S.W. 15; 1920 Ark. LEXIS 565
- **Precedential status:** Published
- **Opinion:** Dissent by McCulloch
- **Judges:** Habt, Hart, McCulloch, Smith
- **Cited by:** 13 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/7810798

## Opinion text

McCulloch, C. J. (dissenting). The decision in this
case is, it seems to me, of very great moment, for I think it is in conflict with many cases decided by this court which may have become established rules of property. The statute under which the proceedings relating to the sale of this property were maintained is identical, so far as affects the questions now under consideration, with the act of April 2, 1895 (Acts 1895, p. 88), prescribing the method of foreclosing the lien of the St. Francis Levee District for unpaid assessments on lands in that district. A comparison of the two statutes shows that the person who prepared the later statute which governs in the present case had the former statute before him and followed it almost word for word, except in certain particulars not important to notice in the present case.
The St. Francis Levee District statute provides, the same as this one, that the 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 proceeding, and such judgment shall be enforced wholly against said lands and not against any other property or estate of said defendant.” It provides, the same as in the present statute, that in the published notice there shall be “a list of supposed owners with a descriptive list of said delinquent lands and the amounts due thereon respectively as aforseaid.” In fact, there is no difference whatever between that statute and the present one, so far as it affects the present case.
This court, in construing the statute in the case of Ballard v. Hunter, 74 Ark. 174 , held that the fact that the owner, Mrs. Ballard, was not made a party defendant to the suit to enforce the collection of the taxes did not affect the validity of the decree and sale, and based its conclusion on the language of the statute which provided that the suit should be in the nature of proceedings in rem, and that “it shall be immaterial that the ownership of the lands may be incorrectly alleged in said proceedings.” That decision has been directly followed by this court in deciding other cases under that statute. Pattison v. Smith, 94 Ark. 588 ; Crittenden Lumber Co. v. McDougal, 101 Ark. 390 . The last case cited is peculiarly applicable to the present case in view of the fact that the same mistake was made in that case as in the present case, the land being’ owned by the Crittenden Lumber Company, the appellant in that case, but was listed in the published notice in the proceedings and sold as the property of Sweet Brothers. This court held that that mistake was covered by the provision of the statute to the effect that ‘ it shall be immaterial that the ownership of said lands be incorrectly alleged in said proceedings,” and that the sale under which the'decree was made was not open to collateral attack on that ground.
The case of Ballard v. Hunter, supra, was taken to the Supreme 'Court of the United States on a writ of error and the judgment was there affirmed. 204 U. S. 241 . The Supreme Court of the United States in disposing of the case said: ‘ ‘ The statutes of the State, under which the taxes were levied, virtually made the land a party to the suit to collect the taxes. It is from the lands alone, and not from their owner, that the taxes are to be satisfied, and each acre bears its part. The burden of taxation could have been easily and definitely assigned by the court. Mistakes in ascribing the ownership of the lands did not increase the taxation or cast that which should have been paid by one tract of land upon another tract. ’ ’
Again that cpurt saidl¡: “The 'complaint showed that Ballard was the owner of the lands, and that he was a nonresident of the county. It is said, however, that Josephine Ballard was not made a defendant in the suit, though the records of the county showed that she was an owner thereof. But the statute provided against such an omission. It provided that the proceedings and judgment should be in the nature of proceedings in rem, and that it should be immaterial that the ownership of the lands might be incorrectly alleged in the proceedings. We see no want of due process in that requirement, or what was done under it. It is manifest that any criticism of either is answered by the cases we have cited. The proceedings were appropriate to the nature of the case.”
I am entirely unable to understand how the majority can treat the proceedings under this statute as being “against the person in respect to the property” in the face of the statute which expressly provides that “it shall be immaterial that the ownership of said lands may be incorrectly alleged in said proceedings, and such judgment shall be enforced wholly against said lands and not against any other property or estate of said defendant. ’ ’ Nor am I able to see the force of the application made by the majority to the case of Farmers & Merchants Bank v. Layson Lumber Co., 87 Ark. 607 . The statute under consideration in that case provided that the proceedings should be personal against the owner, but that where the owner was unknown, and it was so stated in the complaint, the proceedings should be in rem. The suit under which the sale was made was not a proceeding in rem, but was a personal suit against one Eubanks, who was not the owner of the property, and this court decided that the real owner was not bound by the decree. That was not a proceeding in rem or in the nature of a proceeding in rem, and therefore did not bind any person except the one who was a party to the record. The proceeding involved in the case now before us was one under the statute which declared it to be in the nature of a proceeding in rem, and the property itself was bound, irrespective of any mistake as to the name of the supposed owner. The majority disclaim any intention to overrule the case of Cassady v. Norris, 118 Ark. 449 . They undertake to distinguish the two cases, but I am unable to see the force of the distinction.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7810798. Public record. Not legal advice.