BOEHM V. PORTER.

(Supreme Court of Arkansas. July 3, 1891.) TAX-DEED-PRIMA FACIE TITle-Validity oF SALE -REIMBURSEMENT BY OWNER-PENALTY-INTER

EST.

1. A tax-deed regular on its face shows prima facie title in the purchaser; and where, in an action to quiet title by the grantee of the owner, there is no evidence impeaching the tax-sale, the purchaser's grantee need not rely on a decree confirming it.

2. Act Ark. Feb. 19, 1869, provides that the tax collector shall make a delinquent list of lands on which taxes remain unpaid, and return the same to the clerk within 10 days after the expiration of 60 days from the time the collector receives the tax-book, and that the clerk shall immediately thereafter publish the list for at least three weeks, with a notice that the lands therein will be sold on the "Monday next succeeding" said three weeks. Held, that where the tax-book was delivered to the collector March 20, 1869, and it did not appear when the list was returned, it would be presumed that it was returned within the time prescribed, (the tax-deed being presumptive evidence of that fact,) and that a sale made August 2, 1869, was later than the law authorized, and void, since, if the clerk had published notice immediately, the sale would necessarily have taken place in June or July.

3. A sale for delinquent taxes for the year 1868, levied in March, 1869, is void, since the power of the county court to levy taxes for 1868 conferred by Act Ark. July 23, 1868, expired with that year. Parr v. Mathews, (Ark.) 8 S. W. Rep. 22, followed.

4. Act Ark. July 23, 1868, § 75, providing for the payment of intercst at 25 per cent. to the purchaser of lands sold for taxes, applies only to actions to recover possession, and, on a bill to set aside an illegal tax-sale made under that act, the amount to be repaid the purchaser should be computed at 6 per cent. on the legal taxes due at the date of sale, under section 72, providing that on the sale of lands for taxes the len of the state is transferred to the purchaser, and, if the sale proves invalid on account of irregular proceedings by the officers, the purchaser shall receive from the owner of the land the amount of taxes, penalty, and interest legally due thereon.

Appeal from Arkansas chancery court; JOHN A. WILLIAMS, Chancellor.

Bill to quiet title to two tracts of land by Solomon Boehm against Joseph I. Porter. Decrees for plaintiff as to one tract, and for defendant as to the other. Both parties appeal. Affirmed in part, and reversed in part.

W. H. Halleburton, for appellant. Gibson & Holt, for appellee. v.17s.w.no.1-1

MANSFIELD, J. This is a suit in equity to quiet the title of the plaintiff, Boehm, to two tracts of land situated in township 2 S., range 4 W., in the county of Arkansas. and to cancel a tax title thereto held by the defendant, Porter. One of the tracts is part of section 33, and the other is a subdivision of section 34. Both were pat ented to the state under the act of con gress of September 28, 1850, and were sold by the state in 1859 to Samuel P. Johnson, who conveyed them to the plaintiff in the year 1885. The complaint states that the defendant claims title to these lands, under an auditor's deed conveying them to his vendor as lands forfeited to the state for the non-payment of taxes for the year 1868; that there was no legal assessment, return of delinquency, advertisement or sale of the lands, for the taxes of that year, und that the forfeiture to the state was therefore void, and passed no title; that the plaintiff has tendered to the defendant a sum sufficient to reimburse him for the sum paid on the purchase of the lands, and for all taxes subsequently paid thereon; and that the tender was refused. The defendant by his answer claims title to the land in section 33, under a conveyance executed to him in 1868 by N. B. Price. He alleges that Price purchased that tract at a sale thereof made in 1876 for the taxes of 1873, 1874, and 1875; and that, having at the proper time received the clerk's deed for the land, he subsequently obtained a decree of the Arkansas circuit court confirming the sale. The answer admits that the defendant's title to the tract in section 34 was acquired by conveyance from W. M. Price, and that the latter held under a deed executed by the auditor of state on the 20th day of February, 1872, pursuant to a sale of that tract as land which had been forfeited to the state for the non-payment of taxes. But it denies that the forfeiture was illegal, and avers that the land was regularly assessed, returned delinquent, advertised, and sold in the manner provided by law. The several deeds relied upon by the defendant are made exhibits to the answer. As a further defense applicable to both tracts, the defendant pleads the statute of limitations of seven years, and also the statute providing that actions to test the validity of tax-sales shall be brought within two years from the date of the sale. The chancellor found that the sale of the

tract in section 33 was confirmed by the decree mentioned in the answer, and, as to that tract, the plaintiff was denied any relief. But he found that the tract in section 34 was sold for non-payment of the taxes of 1868, and that the sale was made on a day not provided for by the law. On this finding, it was adjudged the sale thus made was void; and the court having also found that the defendant and his vendor had paid on said tract taxes which, together with interest thereon at the rate of 25 per cent. per annum, amounted to the sum of $305.35, a decree was entered fixing a lien on the land for the payment of that sum, and directing a sale to satisfy it in the event of the plaintiff's failure to make the required payment. Both parties have appealed.

In the abstracts filed here by counsel for the parties, no facts are stated which could have justified the chancellor in finding that the plaintiff's action was barred by the seven-years statute of limitations. The two-years statute has no application to this case, so far as the plaintiff's suit is to avoid the sale of the land in section 34. See Radcliffe v. Scruggs, 46 Ark. 96. Nothing affecting the validity of the sale of the tract in section 33, made by the collector in 1876, is alleged in the complaint or disclosed by the proofs on which the cause was heard. Nor does the abstract or brief of the appellant point out any ground of objection whatever to that sale, or to the deed of the clerk made pursuant thereto. The deed contains all the usual and necessary recitals of such a conveyance, and no defect sufficient to avoid it is discovered on its face. It was sufficient, in connection with the conveyance executed by Price, to establish a prima facie title in the defendant, and, in the absence of evidence impeaching the sale, he was under no necessity of relying upon the decree confirming it. Independently of that decree, the evidence showed that the plaintiff's vendor had been divested of title to the land in section 33, and it is therefore unnecessary to decide whether the proceeding for confirmation is open to any of the numerous objections which counsel for the appellant have urged against it. The deeree of the court below, so far as it relates to the land embraced in the clerk's deed, is without error, and it is to that extent affirmed.

which the tax remained unpaid, within 10 days after, the expiration of 60 days from the time at which he received the tax-book. The act further provided that the clerk should, immediately after the delinquent list was returned, publish the same for at least three weeks, with a notice attached to it that the lands it embraced would be sold on "Monday next succeeding" the three-weeks notice. It was proved that some of the sheets or pages of the delinquent list had been worn or torn off, and it did not appear when it was filed. But, nothing being shown to the contrary, the auditor's deed is evidence that the list was filed within the time prescribed by the statute; and that time having expired before the 1st day of June, if the clerk had complied with section 14 of the act by publishing the list "immediately," the sale would necessarily have taken place in June or July. So far, then, as appears from this record, the sale was at a later day than the law authorized. But it was void upon another ground, which was clearly established by the evidence. In Parr v. Matthews, 50 Ark. 390, 8 S. W. Rep. 22, it was held that the act of February 19, 1869, made no provision for the levy of taxes; and that the power of the county court to levy taxes for 1868 expired with that year, under provisions contained in the act of July 23, 1868. The sale in question here was, as we have seen, made for the payment of a county tax levied for the year 1868, in March, 1869. It was therefore void, and the court did not err in so adjudging.

It is not clear, from the language of the decree, whether it contemplates the payment of all or either of the taxes for the non-payment of which the land was forfeited. The land was legally assessed and returned delinquent for the year 1868. A lien for the state taxes of that year, together with a penalty of 25 per cent. upon the amount of such taxes, had thus at tached under section 10 of the supplemental act of 1869, at the time of the illegal for. feiture. As the amount thus due to the state was paid in the purchase of the land at the auditor's sale, it should be paid to the defendant, and its payment should be provided for in the decree canceling his title. But the county tax was an illegal exaction, which created no charge upon the land, and which the plaintiff was never under any obligations to pay. The reimbursement of that tax ought not, therefore, to be required of him as a condition of obtaining the relief he seeks in this suit. Worthen v. Badgett, 32 Ark. 496. The

imburse the defendant for all taxes paid on the land by the defendant or his vendor subsequent to the date of the latter's purchase. And the tender made by the plaintiff does not appear to have been such as to stop the accrual of interest on the sums the defendant was entitled to receive. Cole v. Moore, 34 Ark. 589; Hamlett v. Tallman, 30 Ark. 505. But it was error to compel the plaintiff to pay interest at the rate of 25 per cent. per annum. Section 75 of the act of July 23, 1868, providing for the payment of interest at that rate to the purchaser of land sold for taxes, applies

only to actions to recover the possession of such lands; and, upon a bill to set aside an illegal sale made under that act, equity will impose upon the land owner no harder terms than those provided for in section 72. That section is as follows: "Upon the sale of any land ortown lot for delinquent taxes, the lien which the state has thereon for taxes then due is transferred to the purchaser at such sale, and, if such sale proves to be invalid on account of any irregularity in the proceedings of any officer having any duty to perform in relation thereto, the purchaser at such sale is entitled to receive from the proprietor of such land or lot the amount of taxes, penalty, and interest legally due thereon, and the amount of taxes paid thereon by the purchaser subsequent to such sale, and such land or lot is bound for the payment thereof." This statute does not require the payment of an illegal assessment or interest at a higher rate than 6 per cent. per

annum.

So much of the decree as affects the land in section 34 is reversed, and the cause, with reference to that tract, will be remanded for further proceedings in accordance with this opinion. The court below is directed to enter a decree setting aside the tax-sale of said land, and canceling the defendant's title thereto. But such decree must establish a lien on the land in favor of the defendant for the sum due upon it at the time of its forfeiture for the state taxes of 1868, and the penalty which had accrued thereon, with interest on said sum at the rate of 6 per cent. per annum from the date of the auditor's sale; also for the several sums paid by the defendant and his vendor in discharge of taxes lawfully levied upon said laud since the 20th day of February, 1872, with legal interest upon each of said sums from the date of its payment; and the court will, by appropriate order, direct that, in default of the payment of said sums and interest to the defendant within 60 days after the entry of said decree, the land shall be sold for the satisfaction of the lien thus to be established Such sale shall be made and conducted in the manner provided by law for judicial sales of real estate; and, after the payment of the sums due to the defendant, the residue of the proceeds thereof, less the amount of any costs directed to be paid out of the same, shall be paid to the plaintiff.

DOBSON V. STATE.

(Supreme Court of Arkansas. July 3, 1891.) MURDER-VENUE - PRESUMPTION FROM INQUESTMISCONDUCT OF JUROR-COPY OF INDICTMENTCONTINUANCE-Challenge tO GRAND JURY.

1. In a murder trial, it appeared that deceased was killed at her residence, which was variously stated as from 9 to 14 miles from the county-seat of the county in which the crime was alleged to have been committed, but in what direction was not shown. The distance of the county-seat from any county line did not appear, though it was probable that in some directions it was not over 10 miles. Held, the venue was not sufficiently proved. Forehand v. State, 53 Ark. 46, 13 S. W. Rep. 728, distinguished.

2. The mere fact that the inquest was held by a magistrate of the county in which the venue

was laid creates no presumption that the crime was committed therein.

3. One of the jurors, disobeying a previous order of the court, left the box, and joined in pursuit of defendant, who had escaped from the court-room during the trial. On returning, he stated, in response to questions by the court, that he had not conversed with any one as to the guilt or innocence of defendant. Held not misconduct requiring a new trial.

4. A memorandum of the names of additional witnesses, indorsed by the prosecutor on the indictment after service of a copy thereof on defendant, affects neither the indictment nor the copy, and does not entitle defendant to a new trial, on the ground that he had not been legally served with a copy of the indictment more than 48 hours prior to arraignment.

5. Mansf. Dig. Ark. § 2130, provides that, where two indictments for the same offense are pending, the one first found shall be deemed suspended by the second, and shall be quashed. A second indictment for the same offense was found and served on defendant, and the first was dismissed. Held not error to require a plea to the second.

6. A motion for new trial, on the ground that defendant was in jail, and had therefore no opportunity to challenge the grand jury finding the second indictment, was properly overruled, where it was not shown that any valid cause of challenge existed.

7. It was not error to refuse a continuance to prepare for trial on a second indictment for the same offense, where it appeared that the first indictment was found six months previously.

Appeal from circuit court, St. Francis county; GRANT GREEN, Jr., Judge.

James Dobson was convicted of the murder of Nancy Ables, and appeals. Reversed.

Geo. Sibly, for appellant. W. E. Atkinson, Atty. Gen., and Chas. T. Coleman, for the State.

HUGHES, J. The appellant was convicted of murder in the first degree in the St. Francis circuit court, and filed a motion in arrest of judgment, on the ground that the indictinent did not state facts sufficient to constitute murder in the first degree, which was overruled, to which the appellant excepted. He also filed a motion for a new trial, which was overruled, to which he excepted. He tendered his bill of exceptions, and appealed to this court.

There is nothing in the motion in arrest of judgment, as the indictment states facts sufficient to constitute a public offense. At the October term of the court for 1890 the grand jury returned into court an indictment against the appellant for murder in the first degree, and a copy of this indictment was served upon him in open court on the 14th day of April, 1891, and he was remanded to jail. On the 16th day of April, 1891, the grand jury returned a second indictment into court against the appellant for murder in the first degree, being for the same offense alleged in the first. On the 17th of the same month the appellant was brought into court, and served with a copy of this second indictment, and, upon motion of the state, the first indictment was dismissed, and the trial was proceeded with, upon the second indictment. on the 20th of the same month, when, upon his arraignment, the appellant stood mute, and the court ordered a plea of not guilty to be entered for him, and set the cause for trial upon