Kinsey v. Pulaski County.

both purposes, there should not have been levied any tax greater than $19,078, when there was levied for both purposes $92,240.40, making a tax in excess of the legal amount of $73,162.40; for defendant says, under the revenue law of the state of Arkansas, in force when such assessment and levy were made, no greater tax could be assessed by the county court, than one mill on the dollar of the taxable property of the county for bridge purposes, and a like amount for taking care of the poor or paupers of the county, and to pay the tax so assessed and levied contrary to law as aforesaid, all of said supposed warrants or orders except to the amount of $3,200, as herein before stated, were issued, and said assessment and levy being illegal and void, so are said supposed warrants or orders issued to pay the taxes required by such assessment and levy; and defendant further shows, that besides the said supposed warrants or orders, sued on herein, other warrants or orders of like character have been issued, which, added to those sued on, make up the full amount of the illegal assessment of $92,240.40, as aforesaid, as appears by the certificate of the clerk of said county court hereto appended and marked XI.”

To this count the plaintiff demurred on the ground that it sets forth no defense to the action, and this is the question presented for determination.

Benjamin & Barnes, T. D. W. Yonley, for the plaintiff.

A. H. Garland, Gallagher & Newton, for the county.

DILLON, Circuit Judge. The county court of each county in Arkansas is invested, inter alia, with jurisdiction and power to order the erection and repair of bridges, and is charged with the duty of taking care of and maintaining the poor therein.

There is no express and specific limitation in the statutes

Kinsey v. Pulaski County.

as to the amount of liability which the county may incur for these purposes.

The defense set up is, that there is such a limitation, and that the most of the warrants in suit were issued after this limitation had been passed, and hence are not binding upon the county. The limitation is sought to be deduced from the provisions of the revenue law of the state, by which it is provided, that no greater tax can be assessed and levied by the county court than one mill on the dollar of the taxable property of the county for bridge purposes, and a like rate for taking care of the poor of the county.

The power to incur a liability in respect to bridges and paupers is distinct from the power to levy taxes to meet liabilities thus incurred.

It may, or may not be, that no greater rate of taxation can be levied than the limited rate above mentioned, but this is a different question from the one, whether the county court in making contracts or incurring liabilities for bridges and paupers is limited to such as may be met out of such funds as may be raised by taxation at the specified rates.

It is our opinion that the limitation in the revenue laws as to the rate or amount of taxes which may be annually levied for bridges and paupers, does not measure the legal power of the county court to bind the county by contracts otherwise binding for these purposes.

CALDWELL, J., concurs.

DEMURRER OVERRULED.

Platte City, ante, 1;

NOTE. As to limitation on rate of taxation where there is express or special authority to create a debt: See Britton v. Dillon, Munic. Corp. secs. 107, 610, and cases cited. County, ante, p. 249.

Whitwell v. Pulaski

Walker v. Moore.

WALKER . MOORE.

Under the statutes of Arkansas a tax deed which shows by its recitals that two or more separate town lots were sold en masse, for a gross sum, is void on its face, and cannot be contradicted by evidence aliunde.

(Before DILLON and CALDWELL, JJ.)

Tax Deeds.-Sale of Separate Lots En Masse.

EJECTMENT for lots 1, 2, and 3, in block 2, Little Rock. The defendants are the general owners of the property. The plaintiff claims under the tax deed hereinafter mentioned, made to him by the county clerk under authority conferred upon this officer by the laws of the state. (Acts 1869, sec. 144.)

By the recitals of said tax deed to the plaintiff, it appeared that lot 4, in block 1, and lots 1, 2, and 3, in block 2, in Little Rock, were assessed for taxation upon the non-resident list for 1867, to Bliss & Schenck, and that the same were advertised for said taxes for sale on the 9th day of March, 1868. Before the day fixed for the sale, but after the advertisement, the deed recites, that the owners had paid the taxes and obtained an injunction against the collection of the penalty, but did not pay the costs of advertising. The tax deed recites that on said day fixed for the sale, the sheriff, as collector, "did proceed to sell at public auction the said lots of land in separate lots and parcels, for the non-payment of such costs of advertising, which amounted to the sum of $3.6", and at such sale Thomas H. Walker bid and offered to pay the said costs for the whole of said lots, and no person having bid or offered to pay such costs for a less quantity thereof, the same were then and there publicly struck off and sold to him for that sum." In consideration of said $3.60 the sheriff grants the said lots to the said Walker. The sheriff's certificate of sale shows that the costs charged for advertising lot 4 in block 1 were $1.80,

Walker v. Moore.

made up of the following items: Advertising, 80 cents; clerk, 25 cents; levy and return, 75 cents; total, $1.80. And the like amount of $1.80 for lots 1, 2, and 3, in block 2. The tax deed and sheriff's certificate of sale were offered in evidence by the plaintiff to sustain title; the defendant objected to their introduction, because the deed was void on its face.

Gallagher & Newton, for the plaintiff.

U. M. Rose, for the defendant.

DILLON, Circuit Judge.-The revenue statute of Arkansas requires the collector, on the day fixed for the sale of lands for delinquent taxes, to "proceed to offer for sale, separately, each tract of land and town lot contained in such list, on which the taxes and penalty have not been paid." (Gould's Dig. 950, 118.) "The person offering at such sale to pay the taxes charged on any tract or lot, for the least quantity. thereof, shall be the purchaser of such quantity." (Ib. sec. 119.) "Such tracts or lots as shall remain unsold for want of bidders shall be entered as sold to the state.” (Ib. sec. 123.)

Construing the recitals in the tax deed the most favorably for the plaintiff, they show that the several lots were offered in separate parcels, but sold en masse, for the gross sum of $3.60.

Under the statute each lot must be offered for sale separately, and if there be no bidders, the lot must be entered as sold to the state. There is no authority in the statute, after distinct lots have been separately exposed, and no bidders have been found, to group these lots, though belonging to the same owner, and sell them en masse. If this be done, the sale is void; and a deed showing, as in the deed to the plaintiff, that this course was pursued, is void on its face.

A deed void on its face for this reason cannot be vali

Walker v. Moore.

dated by parol evidence contradicting the recitals in the deed.

We therefore hold that the tax deed offered by the plaintiff must be excluded. We also hold that the offer of the plaintiff to show by evidence, aliunde the deed, that there was a separate sale of lot 4 in block 1 is incompetent.

We also hold that the offer of the plaintiff to show by evidence, aliunde, that all of the requirements of the tax law of the state had been complied with, unless said requirements were violated by the sale of the lots together, must be rejected, for the reason that the deed recites a sale of said lots en masse, and is therefore void on its face, and hence it is immaterial whether the other requirements of the revenue law were complied with or not.

JUDGMENT For defendant.

NOTE.-Where the statute requires a sale in parcels, a tax deed showing a sale of several parcels, en masse, is void: Ryan v. Cook, 21 Iowa, 393; Ferguson v. Heath, ib. 438; Harper v. Sexton, 22 Iowa, 442; Ashley v. Serton, 24 Iowa, 320. See, also, Loomis v. Pingree, 43 Maine, 299.

As to assessment of several parcels as one tract, where so returned by the owner: Woodburn v. Wiseman, 27 Pa. St. 18.

As to recitals in tax deeds and their effect under the laws of Arkansas: Bonnell v. Roane, 20 Ark. 125; Hogan v. Brashears, 13 Ark. 242, 249; Bettison v. Budd, 21 Ark. 581; Patrick v. Davis, 15 Ark. 365; Twomley v. Kembrough, 24 Ark. 464; McDermott v. Scully, M. S. Sup. Court, Ark. Deer T. 1871; Packer v. Overman, 18 How. (U. S.) 137,