Bd. of Directors of St. Francis Levee District v. Fleming, 93 Ark. 490 (Ark. 1910)

McCulloch, C. J.

This appeal involves a controversy over the title to a quarter section of land in Crittenden County. Appellees claim title under a tax forfeiture to the State and donation deed to appellee’s grantor, McCann, and possession for the

statutory period of limitation under the donation deed. Appellants claim title under a sale for levee taxes in 1898, made pursuant to a decree of the chancery court rendered in a suit instituted hy the levee district to enforce the payment of delinquent levee taxes. The decree of the chancery court in the foreclosure suit was rendered February 14, 1898, and condemned the land for the levee taxes of 1896. Sale was made by the commissioner of the court June 13, 1898, and the sale was reported to and-confirmed by the court July 21, 1898. At that time the statute provided no period for the redemption of lands sold for levee taxes of that district. The board of directors purchased the land at the sale, and subsequently sold and conveyed it to the other appellants, who are the real parties in interest, and now claim the land.

The tax sale under which appellees claim title was void for several reasons not necessary to enumerate; but their grantor, McCann, was in possession the requisite length of time under his donation deed from the State to get title by limitation. This operated as a complete investiture of title, and enables appellees to maintain this action, unless their title has been divested by the subsequent levee tax sale.

The question in the case is whether or not appellants have a valid title under the levee tax sale made by the commissioner of the chancery court in 1898, which they can assert against appellees. The statute (Acts of 1895, p. -88) which authorizes foreclosure preceedings to enforce the payment of levee taxes due the St. Francis Levee District provides that “said proceedings and judgment shall be in the nature of proceedings in rem, and it shall be immaterial that the ownership of. said lands may be incorrectly alleged in said proceedings; and said judgment may be enforced wholly against said land, and not against any other property or estate of said defendant. All or any part of said delinquent lands for each of said counties may be included in one suit for each county, instituted for the collection of said delinquent taxes, etc., as aforesaid, and all delinquent owners of said lands, including those unknown as aforesaid, may be included in said one suit as defendants; and notice of the pendency of such suit shall be given as against non-residents of the county and the unknown owners, respectively, where such suits may be pending, by publication weekly for four weeks prior to the day of the term of court on which final judgments may be entered for the said sale of said

lands.” The same statute contains also the following provision in reference to the procedure in such suits: “As against any defendant who resides in the county where such suit may be brought, and who .appears by the record of deeds in said county to be the owner of any of the lands proceeded against, notice of the pending suit shall be given by the service of personal summons of the court at least twenty days before the day on which said defendant is required to answer, as set out in said summons. * And provided, further, actual service of summons shall be had where the defendant is in the county or where there is an occupant upon the land.”

The foreclosure decree involved in the present suit was the same one involved in the case of Van Etten v. Daugherty, 83 Ark. 534, where the court held that the decree was void as to the lands actually occupied by the owner or his tenant, and as to the lands of a resident of the county whose title appeared of record, unless there had been personal service of summons. McCann was not a resident of the county where the lands are situated. He was a non-resident of the State, and his donation deed was not recorded at that time; but appellees attempted to prove that a tenant of McCann occupied the land at the time the foreclosure suit was instituted. They failed, however, to prove it. The chancellor found against them on this issue, and we conclude that the finding was in accord with the preponderance of the evidence. The burden was on appellees, in attacking the decree of the chancellor, which was valid and regular on its face, to establish the grounds of their attack. We therefore treat the foreclosure decree, and sale thereunder, as having been done in accordance with the statute authorizing the proceedings.

It is contended that the levee district and its grantees are estopped to assert title under the foreclosure sale, on account of a payment by McCann and acceptancce by the officers of the levee district of the taxes of the years 1897 and 1898, and subsequent years, while the title under the foreclosure sale stood in the district. The chancellor sustained this contention, and rendered his decree on the ground that the appellants were estopped to assert title under the foreclosure, in dispute of the title of appellees, on account of the subsequent acceptance of taxes by officers of the levee district. The taxes of 1897 were paid prior to the decree, which was rendered on February 14, 1898, and there can be

no estoppel by reason of the acceptance of these taxes, for the .decree is conclusive as to. all matters which occurred before its rendition, the same having been rendered on due notice and in accordance with the provisions, of the statute. The acceptance of the taxes of 1897 could, at most, amount only to an implication of the payment of the taxes, of the prior year of .1896; and, even if the' taxes of that year had in fact been paid, it is too late,' after the final decree of foreclosure, to show payment in order to defeat a title acquired under that decree. So we look' to things done after the decree and confirmation of sale in.order to find acts and conduct which would estop the holder of title under,the foreclosure from asserting that title.

Did the acceptance of the levee taxes after title was vested’ in the levee district operate as an estoppel? The title being then vested in the levee district, the only method by which it could be lawfully conveyed was by deed, executed by the president. The statute authorizes only that officer to sell lands of the'district and execute deeds therefor. No one else has any authority to do so. The assessor values the betterments to lands for taxation, the collector collects the taxes levied, and the treasurer receives the funds collected, ánd this is all that either officer is. authorized to do.

The Board of Directors of St. Francis Levee District is a quasi corporation, to which is delegated certain powers as a governmental agency. Carson v. St. Francis Levee District, 59 Ark. 513. “Such an agency of government is sui generis, and its powers cannot be likened to those of municipal corporations, whose powers are broader and more general within their prescribed territory and over the subjects delegated to them. They exercise no governmental powers except those expressly granted by the legislative authority which called them into existence, and then only in the manner pointed out expressly or by fair implication.” Altheimer v. Board of Directors Plum Bayou Levee Dist., 79 Ark. 229.

It is settled by decisions of this court that the State cannot be estopped to assert title to its lands on account of unauthorized acts of its officers. Woodward v. Campbell, 39 Ark. 580; Pulaski County v. State, 42 Ark. 118. In one of these cases the court said: “The State is liable only to the extent of the power actually given to its officers, and not to the extent of their apparent

authority; and all who deal with a public agent must at their peril 'inquire into his real power to bind his principal.”

In a Georgia case, where officers had caused lands to be sold for the State, the court held that this did not estop the State from afterwards asserting that the lands were not subject to taxation and claiming -them. The court said: “Nothing done by the comptroller general or the sheriff, or the tax officers of the county, or the treasurer of the State, in reference to the fund which went into the State treasury, derived from the sale of the land, or that derived from the taxes collected from year to. year, would have the effect of estopping the State, no one- of its public officers having acted within the scope of his authority when he dealt with the property or the fund.”

The same rule should apply to any governmental agency in the exercise of purely public functions. Herman on Estoppel, §1222; St. Louis v. Gorman, 29 Mo. 593. There is no reason why the unauthorized acts of a levee district should estop it from asserting its rights than that the State should not be es-topped by the unauthorized acts of its officers or agents. The ‘officers of the levee district who assessed and collected the taxes in the name of the district had no authority under the law to sell the lands of the district, and to hold that their unauthorized acts estop the district is to empower them to do indirectly that which they cannot directly do.

We do not intend to hold that the levee district cannot under any circumstances be estopped by unauthorized acts of its officers, for, when things are done by an unauthorized method which are within the power of the corporation to do, the unauthorized acts may be ratified by the corporation acting through those of its officers who have authority to do so. But the ratification, to be effective as an estoppel, must be made by the officers or agents authorized to do those things, as one who was unauthorized to perform the original act would be without authority to ratify the same act done by another. Texarkana v. Friedell, 82 Ark. 531.

The case of Book v. Polk, 81 Ark. 244, which is relied on by counsel for appellees, does not reach to-the point involved here, and is without controlling force. There the court held that where the president of the levee district, who is authorized by statute to sell and convey lands for cash, conveyed land to a purchaser for part cash and part on credit, the conveyance was valid and

binding, and that the district, having received the money and notes of the purchaser, was estopped to deny that the title passed under the conveyance. That decision was put on the ground that the act done by the president was within his powers, and that the only departure was in the method of exercising the power.

Opinion delivered February 14, 1910.

We conclude that the decree is erroneous, so the same is reversed, and the cause is remanded with directions to dismiss the complaint for want of equity.

on rehearing.

PER Curiam.

We are asked to modify the judgment of this court so as to authorize the recovery by appellees of the amount of taxes paid on the land in controversy. Without deciding the question whether or not appellees would be entitled to recover the taxes in a separate action, we decline to modify the judgment for the reason that the recovery of taxes is not within the issues made by the pleadings in this case. Appellees instituted this suit to quiet title to the land and to restrain appellants from cutting timber. No issue was made as to the recovery of taxes.

Motion overruled.