{ "id": 1473323, "name": "London v. Montgomery", "name_abbreviation": "London v. Montgomery", "decision_date": "1947-04-07", "docket_number": "4-8105", "first_page": "434", "last_page": "440", "citations": [ { "type": "official", "cite": "211 Ark. 434" }, { "type": "parallel", "cite": "201 S.W.2d 760" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "198 Ark. 559", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1459692 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/198/0559-01" ] }, { "cite": "93 S. W. 2d 307", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "192 Ark. 571", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1414902 ], "opinion_index": 0, "case_paths": [ "/ark/192/0571-01" ] }, { "cite": "170 S. W. 249", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "114 Ark. 512", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1536288 ], "opinion_index": 0, "case_paths": [ "/ark/114/0512-01" ] }, { "cite": "99 S. W. 389", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "81 Ark. 319", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1530600 ], "opinion_index": 0, "case_paths": [ "/ark/81/0319-01" ] }, { "cite": "82 S. W. 2d 33", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "190 Ark. 903", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1421913 ], "opinion_index": 0, "case_paths": [ "/ark/190/0903-01" ] }, { "cite": "75 S. W. 2d 819", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "189 Ark. 942", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1425533 ], "opinion_index": 0, "case_paths": [ "/ark/189/0942-01" ] }, { "cite": "248 S. W. 261", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "157 Ark. 208", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1357217 ], "opinion_index": 0, "case_paths": [ "/ark/157/0208-01" ] }, { "cite": "202 Ark. 457", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1449925 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/202/0457-01" ] }, { "cite": "199 Ark. 276", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1456621 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/199/0276-01" ] } ], "analysis": { "cardinality": 625, "char_count": 9645, "ocr_confidence": 0.518, "pagerank": { "raw": 7.652643207756165e-08, "percentile": 0.45181340688202287 }, "sha256": "6bd63c283898af31834276ecea6e60f09751d553a1f897487e6f2a9c70127e55", "simhash": "1:dd602224bd6e1ba0", "word_count": 1671 }, "last_updated": "2023-07-14T15:35:40.925427+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "London v. Montgomery." ], "opinions": [ { "text": "Grieein Smith, Chief Justice.\nThe action was begun in Circuit Court as a suit in ejectment, with the plaintiffs alleging that they were entitled to possession of forty-six and two-thirds feet \u201coff of the- south side of Lots Seven and Eight in Block Thirty-six in Flood\u2019s Addition to the City of Stuttgart.\u201d The action was transferred to Chancery.\nThe lots forfeited for 1930 taxes and were duly certified to the State. In 1936 the State\u2019s title was confirmed under Act 119 of 1935, and in September, 1942, the Land Commissioner conveyed to appellees. Appellants contend (a) that the original sale and subsequent confirmation were void; (b) there was an illegal assessment of road taxes for 1930 and there were other void assessments, with confusion as to valuation; (c) a recital in the decree shows that certain redemptions had been effectuated, and the decree does not point with certainty to the property so redeemed; and (d) appellees\u2019 acts in collecting-rents amounted to a redemption.\nIt is conceded by appellants that the lots are 50 x 140 feet, and if considered as a unit they occupy an area 100 x 140 feet. The description in all of the proceedings prior to the decree was \u201cForty-six and two-thirds feet S. Side L. 7-8/\u2019 etc. Insistence is that \u201cside\u201d must be construed to mean half. There is this contention:\n\u201cExclusive of ten feet for alley right of way on the north end and twenty-five feet for street right of way on the south end, each of these lots is 140 feet in length; and exclusive of thirty feet for street right-of-way on the east side, each of these lots is fifty feet wide. The south end of the two lots (combined as' a body) has 70 x 100 feet, exclusive \u00f3f public right-of-way. Therefore, forty-six and two-thirds feet could not be a description of the entire south \u2018end\u2019 or south \u2018side/ and this necessarily results in having a smaller or lesser' body to be taken somewhere out of a larger body.\u201d\nWe think the references to streets and alleys is more confusing than revealing. A drawing will show that if forty-six and two-thirds feet should be taken from the south end, the amount remaining in the south half of each lot would be twenty-three and a third feet. This would leave two lots of the same size north of the severed area, and it seems that the purpose was to divide the lots north and south so that each would have equal areas. The question is, Does south side mean south half, or should it be construed with such meticulous. exactness that an ordinary person would be uncertain in respect of the intent? \u2022\nWhile as a general proposition the word \u201cside\u201d has reference to the longer dimension of a rectangle, we think the Chancellor was justified in taking a practical view of the obvious and holding that the result intended would direct a purchaser to either the southwest corner of Lot Seven, or the southeast corner of Lot Eight. From these points the measurement would be north 46 2/3 feet; or, if the words \u201csouth side\u201d alone be considered, then 46 2/3 feet would extend entirely across, otherwise the two lots would not be reached, for the description clearly covers \u201cL. 7-8.\u201d\nRecords of the Quorum Court show that for 1930 a tax of three mills was levied \u201cfor district road purposes.\u201d Appellant\u2019s contention is that because the Constitution only authorizes a three-mill \u201ccounty road tax\u201d there was failure to make a valid levy, hence inclusion of ninety cents in the amount for which the property sold will avoid the sale. In Berry v. Davidson, 199 Ark. 276, 133 S. W. 2d 442, Mr. Justice Baker said that where taxes have been levied against land, \u201chowever defectively that may have been done,\u201d the power to sell for non-payment exists, and confirmation under Act 119 of 1935 cures all defects. To the same effect is Faulkner v. Binns, Trustee, 202 Ark. 457, 151 S. W. 2d 101.\nContending that there is no power to levy a district road tax, appellants say: \u201cRoad districts are created in various ways and with various and different functions and with officers or overseers having different powers \u2014some, we believe, being created by local acts prior to the anti-local amendment. \u2019 \u2019\nAssuming there could have been locally created districts, there is no suggestion that such was true: nothing more than a possibility. Again, the result represents merely an irregularity. Undoubtedly the tax was for county road purposes, and this being true, there was no illegal exaction.\nTaxes were extended pursuant to Act 172 of 1929 as follows: \u201cValue of lot, 300; value of improvements, 200; total valne, 300.\u201d Because 300 and 200 do not make 300, it is insisted the assessment is void on its face; and for want of a decimal point appellants do not know whether the figures represent dollars, cents, or mills. Schultz v. Carroll, 157 Ark. 208, 248 S. W. 261; Carter v. Wesson, 189 Ark. 942, 75 S. W. 2d 819; and Mixon v. Bell, 190 Ark. 903, 82 S. W. 2d 33, are cited. The Schultz-Carroll case involves the levy of school taxes. After listing District No. 103, the extension was, \u201cAmount tax voted, 7; for what purpose, 5 gen. 2 bldg.\u201d Mr. Justice Humphreys, in writing the Court\u2019s opinion, said that these figures, standing alone, were meaningless. In a dissenting opinion Chief Justice McCulloch said: \u201cThe Constitution authorizes the school tax in mills, and we should indulge the presumption that the figure in the record was intended to refer to the amount of tax thus authorized. It could not have had reference to dollars .or cents, therefore it must have meant mills. The omission was a mere clerical error. \u2019 \u2019\nIn the Wesson case the sale was for $7.32 \u201cmore than the entire quarter should have sold for.\u201d\nThe Bell case involved failure to make extensions; but, instead, blank lines were left..\nWhile we think the dissenting opinion by Judge McCulloch announced a better rule than the majority holding, there is a distinction between the Sehultz-Carroll decision and facts in the case at bar. It is so highly improbable that a lot would be assessed at $3 and improvements at $2, with an extension of $3 to cover the two, that judicial construction in favor of the objecting party should not be invoked. Applying common experience to the transaction, we know that dollars were meant; and failure to utilize a decimal point was nothing more than an irregularity. See Sawyer v. Wilson, 81 Ark. 319, 99 S. W. 389; Beasley v. Bratcher, 114 Ark. 512, 170 S. W. 249; Evans v. Dumas Stores, Inc., 192 Ark. 571, 93 S. W. 2d 307.\nThe decree recites that some of the tracts covered by the confirmation had been donated, sold, or redeemed, and \u201cIt is adjudged that none of the findings or judgments herein shall be adverse to such donee, purchasers, or persons redeeming, but that on the contrary same shall inure to the benefit of said persons, their heirs or assigns.\u201d\nWe think appellees correctly state the case when they say that had appellants redeemed, \u201csuch redemption could have been interposed as a defense to this proceeding, and the fact that no such plea was interposed is conclusive that there had been no redemption.\u201d\nThe record shows that the Quorum Court had before it a certificate from the County Board of Education designating the millage voted. For District No. 22 (Stuttgart) the amount was written \u201c18.\u201d It is argued that this is indefinite. We do not think the taxpayer was in any respect deceived; nor was there an overcharge. Clearly the figures did not refer to eighteen dollars, or eighteen cents.\nIn their insistence that the valuation of \u201c300'for the lot and 200 for improvements\u201d shows error on the face of the assessment, appellant says that the total valuation was $500 if failure to use dollar marks did not render the entry vague; hence when the total rate of 42.4 mills is multiplied by $300 the tax is $12.72. If extended on $500 the item would be $21.20; therefore the sale was for less than the correct sum by $8.48. They seek to invoke the rule adopted in Hires v. Douglas, 198 Ark. 559, 129 S. W. 2d 959. It was there held that sale of land in an improvement district by a commissioner on order of the Chancery Court where the record affirmatively showed that interest was not included \u201c. . . has the effect of avoiding such sale,\u201d the Court being without jurisdiction to act where the foreclosure was on part of the obligation only.\nThe writer of this opinion wrote the opinion in Hires v. Douglas. We think that part of the decision holding that the Court was without power to order a sale for less than the total obligation, including interest, was wrong. It was error not to require all of the debt elements to be adjudicated, but this did not deprive the Court of jurisdiction as to the foreclosure. The first ground for reversal \u2014 that the Commissioner\u2019s report showed sale of several tracts in solido \u2014 was substantial, and the decision should have rested on that point. That was a judicial sale, while in the instant case a tax forfeiture is involved. Different rules are applicable, but it is not improper to say here that the jurisdictional holding in Hires v. Douglas is overruled.\nFacts incident to appellees\u2019 conduct in collecting rents (upon which appellants predicate their contention that redemption was effectuated) were presented by ex parte affidavits and filed directly with the Clerk of this Court, and cannot be considered. But even if such supplemental record were allowed, appellants would be met with the showing that time for redemption had expired.\nAffirmed.", "type": "majority", "author": "Grieein Smith, Chief Justice." } ], "attorneys": [ "Virgil B. Moncrief and John W. Moncrief, for appellant.", "W. A. Leach, for appellee." ], "corrections": "", "head_matter": "London v. Montgomery.\n4-8105\n201 S. W. 2d 760\nOpinion delivered April 7, 1947.\nRehearing denied May 26, 1947.\nVirgil B. Moncrief and John W. Moncrief, for appellant.\nW. A. Leach, for appellee." }, "file_name": "0434-01", "first_page_order": 450, "last_page_order": 456 }