#### Baiers v. Cammack.

4-7440

182 S. W. 2d 938

Opinion delivered October 30, 1944.

Claude 8. Hall and Ed E. Ashbaugh, for appellant.

John W. Newman and June P. Wooten, for appellee.

Holt; J.

The property involved here is embraced in Street Improvement District No. 508 of Little Bock, Arkansas, and title thereto was acquired by the district October 19, 1938, under foreclosure proceedings for delinquent benefit assessments.

Title thus remained in the district until February 7, 1944, when the property was sold and conveyed to appellee, W. D. Cammack, for a consideration of $1,500.

While the title to this property remained in the district, it was forfeited and sold to the state for the nonpayment of general taxes, assessed against it and claimed *828to be due for tbe year 1939. Thereafter, on August 17, 1943, tbe state, by deed, sold and conveyed a part of tbe property to appellant, J. L. Baiers, and December 13, 1943, sold and conveyed tbe remainder of tbe property to Baiers, who then went on tbe property, wbicb was then unimproved, assembled material, and began making improvements.

February 9, 1944, appellee, Cammack, brought this action in wbicb be alleged ownership of tbe property, and sought to enjoin appellant from going upon tbe property and making any improvements thereon, prayed that appellant be ordered to remove all materials and improvements, and that bis, appellee’s, title be quieted.

Appellant’s answer was a general denial and, by way of cross complaint, sought to recover for all improvements and in addition, tbe purchase price wbicb be paid tbe state for tbe property. Upon a bearing, tbe court found “that the title to tbe property hereinafter described was vested in Street Improvement District No. 508 of Little Bock, Arkansas, at tbe time tbe same was purchased by defendant from tbe State of Arkansas, that said sale from tbe State of Arkansas to defendant was void, and that tbe assessment and tbe forfeiture of said land for tbe nonpayment of state, county and city taxes, for tbe year 1939', were void; that plaintiff succeeded to tbe title of said Street Improvement District No. 508 on February 7,1944, and was at tbe time of tbe filing of this cause tbe rightful owner thereof,” and ordered and adjudged that “tbe assessment of state, county and city taxes for tbe year 1939, tbe forfeiture to tbe State of Arkansas, tbe two deeds of tbe State of Arkansas to defendant (appellant)” were all void and of no effect, canceled tbe deeds and quieted appellee’s title to tbe property. Tbe decree further recited that appellant “shall have a lien against said land for tbe sum of $98, as compensation for labor performed on said land from February 7,1944, to and including noon of February 10, 1944. ’ ’ From tbe decree comes this appeal.

*829. The question here, says appellant, is “whether or not appellant is entitled to recover from appellee the purchase price paid hy appellant to the State of Arkansas for the land . . . and for improvements placed thereon in good faith by appellant. ’ ’ We think the decree of the trial court was, in all things, correct. It is conceded here that the two state tax deeds to appellant were void. When the property was forfeited and sold to the state for the 1939 taxes, title was in Street Improvement District No. 508 of Little Rock, a. governmental agency, and not subject to tax assessments for state and county purposes. The state had no title to convey in the property to appellant and he acquired none.

In the recent case of Cutsinger v. Strang, 203 Ark. 699, 158 S. W. 2d 669, this court said: “The state deed which the appellant received was ineffective to convey title to him for the reason that the title to the property involved was in Street Improvement District No. 2 at the time of its alleged forfeiture to the state for nonpayment of the taxes for 1933. It has long been held in this state that while title to property is in an improvement district by virtue of foreclosure proceedings, the district is exercising a governmental function, and no state and county taxes accrue during this time, the failure to pay which would authorize a tax sale of the property. See Robinson v. Indiana & Arkansas Lumber & Manufacturing Co., 128 Ark. 550, 194 S. W. 870, 3 A. L. R. 1426; Central Clay Drainage District v. Raborn, 203 Ark. 465, 157 S. W. 2d 505. The forfeiture and sale of the land being void, the subsequent action of the state in quieting title thereto did not cure these defects, and the state had no title to convey to the .appellant under the circumstances. ’ ’

In Robinson v. Indiana & Arkansas Lumber & Manufacturing Co., supra, this court said: “Thus it will be seen that the levee district acquired the land in the exercise of its governmental functions, and during the interval between its purchase and resale of the lands, they were not subject to taxation.”

Appellant was not entitled to recover from appellee the amount which he paid to the state for the two void *830deeds executed to Mm by the state, since the title to the property at the time the deeds were issued to him was in a governmental agency, the street improvement district, and Act 269 of the Acts of 1939 relied upon by appellant does not control here.

' Also, we think it clear, as the trial court held, that appellant could not recover under the betterment statute (§ 13884, Pope’s Digest) for improvements made on the property while the title was in the district, a governmental agency. He could, however, recover for improvements after the property reverted to private ownership, February 7, 1944, when the title passed to appellee by deed from the district. For improvements made subsequent to February 7, 1944, he was allowed $98.

In Martin v. Roesch, 57 Ark. 474, 21 S. W. 881, it was held in effect that the betterment statute does not apply to land, title to which is in a governmental agency, and there this court said: "The lands for the payment of

taxes on which the bona fide occupant is entitled to be reimbursed are obviously private lands, public lands being exempt from taxation,” and "the purchaser acquires all the interest and estate of the state in the land, including the improvements on it.” See, also, City of Little Rock v. Jeuryens, 133 Ark. 126, 202 S. W. 45.

Finding no error, the decree is affirmed.