CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT OF ARKANSAS,

AT THE DECEMBER TERM, A. D. 1861.

JONES VS. MCLAIN.

The land of a resident tax-payer not being subject to sale for non-payment of taxes, if sufficient personal property can be found by the collector whereon to make distress for the taxes, the recital in the collector's deed to the purchaser of a resident's land sold for non-payment of taxes, that the tax-payer failed to pay on demand, and "not knowing of any personal property "whereon to levy, he proceeded to levy on, and advertise the land for sale, is not a direct and satisfactory mode of reciting that sufficient personal property of the delinquent could not be found. But, in this case, if the recital is sufficient to put upon the tax-payer the burthen of proving that he had sufficient personal property, that fact is fully proved, and the decree canceling the tax deed affirmed.

Appeal from Pulaski Chancery Court.

Hon. H. F. FAIRCHILD, Chancellor.

Jones vs. McLain.

GARLAND & RANDOLPH, for appellant.

[DECEMBER

The court cannot consider the testimony of Giles and Stillwell as of any effect. They were the deputies of the sheriff, and it is attempted to contradict the deed of the sheriff by their testimony. It seems that the testimony of the sheriff is not competent for this purpose. Biscoe et al. vs. Coulter et al., 18 Ark. 423. And if the sheriff is not a competent witness to contradict the recitals of his deed, the same principle would exclude the deputy, when he has performed the official act.

The recital in the collector's deed is just as certain as if the sheriff had said, "and not being able to find any personal property," etc. The sheriff was required to diligently endeavor and use all lawful means to collect the taxes of McLain (sec. 61, chap. 148, Gould's Dig.), and, in case of his failure to pay them, was required to levy upon his personal property, if he could find any liable to be taken, and, if he could not find any, then to levy on and sell his lands (sec. 107, lb.) Every officer is entitled to the benefit of the presumption that he has performed his duty, and it must be inferred for the collector's deed that after exhausting all the means in his power, of acquiring a knowledge, the sheriff did not know of any personal property of McLain: it cannot be inferred that he made no effort. to acquire a knowledge of McLain's personal property. We contend that the recital contains a literal and substantial statement of all the facts necessary to authorize a sale of the land by the sheriff. The mere fact of a party having personal property, cannot avoid a sale of his real estate for non-payment of taxes. Such a doctrine would destroy public confidence in the validity of the sales of residents' lands. So, proof that McLain had personal property would not avoid the sale, unless it was also in proof that the property was in the county, at the time of the demand of payment, and that the sheriff was aware of the fact.

GALLAGHER and KNIGHT, for the appellee.

The deed was only evidence of the legality and regularity

of the sale until the contrary be made to appear, (Eng. Dig., p. 885, sec. 92,) and the contrary was made to appear by good and sufficient showing, that the sale was illegal and irregular. Furthermore, the deed itself evidenced the illegality and irregu larity of the sale, by showing that the lands were sold because the officer did not know of any personal property of appellee, out of which to make the taxes, instead of showing that no such property could be found. In this view, the sale and deed were void; and Jones acquired no title. Moore vs. Brown, 11 How. U. S. 425; Merrick & Fenno vs. Hutt, 15 Ark. 339; Patrick vs. Davis, lb. 363.

The deed does not recite that no personal property of McLain could be found; and it is shown in evidence that he had abundance of personalty, out of which the taxes could have been made if the collector had performed the requirement of the statute.

Mr. Chief Justice ENGLISH delivered the opinion of the Court. The lands in controversy were assessed by Danley, the sheriff and assessor of Pulaski county, for the year 1857, as the property of Allen McLain, sold for the taxes, etc., charged upon them, in April, 1858, and purchased by Alexander D. Jones, who obtained the collector's deed, and filed a bill for confirmation of his title.

In his answer to the bill McLain made one objection to the regularity of the sale, which the chancellor held to be sustained by the proof, and fatal to the tax title, and we think his decision, upon that point, was correct; and that other objections of minor importance, discussed by counsel, need not be noticed.

The collector in his deed recites that McLain failed to pay the taxes on demand, etc., "and not knowing of any personal property of the said McLain, and he wholly failing to show to the collector any personal property whereon to levy and make distress for the same," etc., the collector proceeded to levy upon and advertise the lands for sale, etc.

McLain was a resident of Pulaski county at the time of the assessment and sale, and had been for twenty years before.

Although the taxes constitute a lien upon the land of the resident, as well as upon the land of the non-resident taxpayer, yet the land of the delinquent resident is not subject to sale for the taxes charged upon it, "if sufficient personal property belonging to him, liable to be taken, whereon to levy and make distress for the payment of such taxes, can be found. Gould's Dig., chap. 148, secs. 106, 107; Merrick & Fenno vs. Hutt, 15 Ark. 340; Kinsworthy et al. vs. Mitchell & wife, 21 Ark. 154. The recital in the deed of the collector-" not knowing of any personal property, etc.,-is not a direct and satisfactory mode of reciting that sufficient personal property of the delinquent could not be found, but for the purposes of this case, the recital in the deed may be treated as sufficient to put upon McLain the burthen of proving that he had, at the time the lands were levied upon, a sufficient amount of personal property, liable to be taken by the collector, and within his reach upon such reasonable diligence as the law imposes upon him, to satisfy the taxes charged upon the lands, as the answer of McLain, in effect, alleges.

The taxes assessed upon the lands for the year 1857, amounted to $26 62.

For the same year, and it appears in the same list with his lands, McLain gave in for assessment, ten head of horses and mares, over two years old, valued at $500; and one hundred head of neat cattle, over two years old, valued at $800. This personal property stood assessed to him, upon the tax book in the hands of the collector, at the time the lands were levied on and sold.

J. D. LITTLE testified, in substance, as follows: I am well acquainted with Allen McLain, and have known him since 1849. He was then, and still is, a citizen of Pulaski county. He is the owner of about one hundred head of cattle, and claims about twenty head of horses, and fifty head of hogs. The cat