these payments were made relying upon the promises and agreements of the appellant's agents; that but for these promises and agreements he would not have subscribed for the certificates; that the promises were false and untrue, and were known by appellant's agents at the time to be false; that they were fraudulently made for the purpose of inducing the appellee to subscribe for the certificates and to pay his money therefor; that appellant had procured from the appellee, by reason of the false and fraudulent representations of its agents, the sum above indicated, for which he had made demand; and that appellant had refused to pay the same. He further set up that his sole purpose in purchasing the certificates was to procure the promised loan of $14,000, which appellant and its agents well knew at the time, and that, upon their failure to make the same as promised, he offered to return the certificates, and set them out and tendered the same in his complaint. He further set up that, in accepting and receiving appellee's application and his money, and in forwarding him the 14 certificates, as alleged and set out, appellant had ratified the agreements of its agents. He prayed judgment for $806. tain contracts and alleged that it had sold same to certain parties, giving the numbers of the series represented by the certificates, and the names of the persons to whom they were sold, and it set out the applications that were made by the purchaser of each of the certificates. It set up that these certificates were assignable and, according to their terms, without condition, except the provision set out in clause No. 11 of those certificates. It set up that it received through the mails from the appellee a signed application for 14 of the contracts. It made the application an exhibit. With the application was request from the appellee that the contracts be transferred on the books of appellant's company; that appellee, with this application, sent the required sum of $14, the fee for their transfer; that the appellant had no interest in these contracts except to comply with the terms and conditions set out therein. The appellant alleged that it had received from all sources on these contracts, in accordance with their terms, the sum of $504. It set up that appellee had, since the month of May, 1911, ceased paying on these contracts. It alleged that Mathews was appellant's agent for the purpose of selling its original contracts, and denied that he or Recklaw was its agent in selling or having transferred the 14 original contracts, and stated that they were without authority to make any such sale, and that appellant had no knowledge of their making such sale. The appellee adduced evidence tending to sustain the allegations of his complaint, and the appellant likewise adduced evidence tending to sustain the allegations of the answer. Prayers for instructions were presented by the respective parties covering their respective contentions on the issues made by the pleadings and the testimony. We will refer to such of these as we deem necessary in the opinion, and will state such other facts as may be necessary to show the points upon which our decision rests. From the judgment in favor of appellee, this appeal has been duly prosecuted. The appellant answered, denying that it made the representations alleged in the complaint as the moving cause which induced the appellee to subscribe for the contracts; denied that the appellee had paid the sum of $540, as alleged, to appellant, or any of its agents, in consideration of the contracts; denied that the representations alleged were made; and set up that, if these representations were made, it was without appellant's knowledge and consent or authority. It denied that the appellant's agents sold the appellee the contracts set up in his complaint, and denied that any one acted for the appellant in the sale of such contracts. It admitted that it received $6 per month on the contracts from the time they were transferred to the appellee as provided in those contracts and the further sum of $1, the fee for transferring the same on the books of the company as provided for in the contracts themselves. It denied that any one pretending to act for the appellant had any authority to make any promise or representation for appellant not contained in the "home-purchasing investment contract" itself, and in the application signed by the appellee for such contract. It set up that the terms, condi- "No. 8. You are instructed that if the detions, rights, and options of the holder of the fendant company clothed its state agents with certificates were fully set forth therein, and general power to superintend the sales of its contracts in the state of Arkansas, together that it was therein expressly stipulated that with the right to enter into contracts in the only such statements as were contained in name of the company, and to transact business the certificates would bind appellant, and, generally throughout the state, and if the defurther, that appellant would not be bound fendant company itself ratified the acts of such state agents beyond the limitations of its printby the statements or promises of any agent, ed instructions, then such agents would be gengeneral or special, not contained in the cer- eral agents within the meaning of the law, with tificates. It alleged that the contracts were implied authority to do and perform all other acts and things in regard to the particular matfair, and that appellant had complied with ters and business in which defendant company all of their terms on its part. It set up cer- was engaged, and the defendant would be bound Ernest Neill, of Batesville, for appellant. McCaleb & Reeder, of Batesville, for appellee. WOOD, J. (after stating the facts as above). [1, 2] The court granted, among others, the following prayer for instruction in favor of the appellee: by all such acts done by such agents within the scope of their apparent authority." The record does not discover any testimony whatever to warrant a finding that the agents of appellant in Arkansas who conducted the negotiations here by which appellee was induced to purchase the contracts mentioned were anything more than mere soliciting and sales agents, with special and limited powers. There is no testimony to warrant a finding that these agents had the right to "transact business generally"; that they had "general power to superintend the sales of its contracts in the state." its agents in making the sale, if these acts were found to be unauthorized. The instructions fully, fairly, and correctly presented these issues. But it is impossible to say that the jury was not misled by the instruction above mentioned. They might have found under this instruction that Mathews and Recklaw were general agents and acting in making the alleged false and fraudulent representations within the authority, real or apparent, given them by appellant, and that appellant, on this account, was liable. For the error in granting prayer No. 8, the judgment is reversed, and the cause is remanded for new trial. (No. 25.) (Supreme Court of Arkansas. June 8, 1914.) 1. LEVEES (§ 28*)-ASSESSMENTS-PROCEEDING FOR COLLECTION-COMPLAINT. Mathews, who solicited the subscription and who issued the receipt to appellee evidencing that he had made the purchase, simply signed himself as "L. C. Mathews," and in that receipt was a "special notice," "Agents are authorized to collect the initial BECK et al. v. ANDERSON-TULLEY CO. payment of $6.00 only." In other receipts issued by him to appellee evidencing the amounts paid by the latter "on contracts" Mathews signed himself as "Special Agent." The fact that Recklaw, another agent, who in a letter acknowledging a receipt by him of money from appellee "on contracts" signed his name as "State Agent" did not show or tend to show that he had the powers of a general agent as defined in Keith v. Herschberg Optical Co., 48 Ark. 138-145, 2 S. W. 777. The testimony of Harris, the president of appellant company, was to the effect that: "The authority of both Mathews and Recklaw, as well as other soliciting agents, is strictly limited to selling the contracts according to their terms and conditions." This is all of the evidence outside of the acts of the agents Mathews and Recklaw tending to show what their authority was, and there is nothing in the acts of these agents to warrant the conclusion that they were clothed with the power of general agents. The above instruction was therefore abstract, misleading, and prejudicial. This was a suit for deceit and fraud. See Jarratt v. Langston, 99 Ark. 438-442, 138 S. W. 1003. [3] The record disclosed two theories upon either one of which the appellee could recover upon the facts being found in his favor upon proper submission of those issues alone to the jury. The evidence was sufficient to warrant the court in submitting to the jury the issue as to whether or not appellant by the conduct of its officers and agents at the home office did not authorize the local agent to negotiate this transaction with appellee, and thus directly, in effect, make the sale of these old contracts to appellee. On this issue the testimony of Holman, Crook, Allen, Gardner, Parker, and Yerger was properly admitted. The court also was warranted in submitting the issue as to whether or not appellant had ratified the alleged unauthorized acts of Since a proceeding under the act creating the St. Francis levee district (Laws 1893, p. 119) and the amendatory act of May 24, 1909 (Laws 1909, p. 783), providing for a proceeding in the chancery court for the collection of delinquent assessments of levee taxes, is a proceeding in rem, the filing of a complaint correctly describing the lands is necessary to give the court jurisdiction of the subject-matter. [Ed. Note.-For other cases, see Levees, Cent. Dig. 88 26, 27; Dec. Dig. § 28.*] 2. LEVEES (§ 28*)-ASSESSMENTS-PROCEEDING FOR COLLECTION-COMPLAINT. Under the act creating the St. Francis levee district (Laws 1893, p. 119) and the amendatory act of May 24, 1909 (Laws 1909, p. 783), providing for a proceeding in rem in the chancery court for the collection of delinquent levee taxes, primal step in the proceedings, and the basis a complaint correctly describing the land is the upon which the clerk must act in giving notice, and no presumptions can be indulged in favor of a decree grounded upon a complaint that does not contain a correct description of the land. [Ed. Note.-For other cases, see Levees, Cent. Dig. §§ 26, 27; Dec. Dig. § 28.*] 3. LEVEES (§ 28*)-ASSESSMENTS-PROCEEDING FOR COLLECTION-COMPLAINT. In a proceeding under the act creating the St. Francis levee district (Laws 1893, p. 119) amendatory thereof, providing for a proceeding and Act May 24, 1909 (Laws 1909, p. 783), in rem in the chancery court for the collection of delinquent levee taxes, a complaint describing the land sought to be sold as "W. 1⁄2 6—3—7 was sufficient, since, as all the lands in the county, are in townships north of the base line and east of the fifth principal meridian, it was unnecessary to put "north" after the figure figure designating the range, and in view of the designating the township, nor "east" after the revenue law, and the act prescribing the form and manner in which the lands are to be listed, there could be no uncertainty in the description. Dig. §§ 26, 27; Dec. Dig. § 28.*] [Ed. Note. For other cases, see Levees, Cent. 4. EVIDENCE (§ 10*)-JUDICIAL NOTICE-GEO GRAPHICAL FACTS. The court will take judicial notice that all the land in Crittenden county is in townships For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes north of the base line and east of the fifth prin- | any and all persons having or claiming an cipal meridian. interest in the lands to appear and show cause, etc. The lands were described in the [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 9-14; Dec. Dig. § 10.*] 5. EVIDENCE (§ 10*)-JUDICIAL NOTICE-GEOGRAPHICAL FACTS. The court will take judicial notice that lands are described under the United States government survey by designating first the section, then the township, and then the range. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 9-14; Dec. Dig. § 10.*] 6. LEVEES (§ 28*)- ASSESSMENT OF TAXES SALE OF LAND FOR NONPAYMENT. A sale in a proceeding under the act creating the St. Francis levee district (Laws 1893, p. 119) and Act May 24, 1909 (Laws 1909, p. 783), providing for a proceeding in rem in the chancery court for the collection of delinquent levee taxes, was not, in view of other recitals of the record, void because the decree was rendered for a sum including the penalty, while the complaint only specified the amount of the tax not including the penalty. [Ed. Note.-For other cases, see Levees, Cent. Dig. §§ 26, 27; Dec. Dig. § 28.*] Hart, J., dissenting. Appeal from Crittenden Chancery Court; Chas. D. Driver, Chancellor. Action by the Anderson-Tulley Company against J. O. E. Beck and others. Decree for plaintiff, and defendants appeal. Reversed and remanded. (and other lands, which were described). The board of directors of the St. Francis levee district were plaintiffs, and Ruth Ellis and "certain lands" were defendants. The decree recites that "the cause came on to be heard upon the complaint of the plaintiffs and exhibits thereto attached and the proof of publication of warning order or notice required by law, and "oral evidence at the bar of the court," and the court specifically found that the complaint was in due form, and due and regular notice of the pendency of the suit had been given, and the court found the amount of taxes, interest, penalty, and costs due upon each of the tracts of land, and decreed the same a lien as against all persons having any interest therein, and directed the sale thereof in default of payment. The lands were described in the decree under the name of the alleged owner, R. E. Gardner, and as "the west 1⁄2 of section 6, in township 3 north, range 7 east, acres 320, total taxes, interest, penalty, and costs $46.88." The lands were advertised for sale, and were described in the notice of sale as in the decree. The time for the payment of the amount as directed by the decree having ex The appellee was the owner of 320 acres of land, described as follows: West 2 of section 6, township 3 north, range 7 east, in Crittenden county, Ark. This land had been sold for levee taxes under an act of the Leg-pired without payment of same, the lands islature creating the St. Francis levee district in 1893 (Laws 1893, p. 119) and amendatory act No. 262, approved May 24, 1909, providing for a proceeding in rem in the chancery court for the collection of the delin quent assessments against such lands. The act, among other things, provides that the board of directors of the St. Francis levee district "shall file its complaint setting out the list The board filed its complaint in the chancery court, under the above act, describing the land as follows: Tax. were duly sold on the day advertised by the commissioner, and were purchased by certain parties for $500. The commissioner reported the sale to the court, and, the time for redemption having expired, deeds were executed to the purchasers, which were presented to the court, and the sale was in all things confirmed and the deeds approved. The lands were subsequently sold by those who bought the same at the court sale to one J. O. E. Beck for the sum of $3,350. He mortgaged it, with other lands, to one Brown, as trustee for J. A. Beck, to secure the sum of $10,000. This suit was brought by the appellees to set aside the sale made by order of the chancery court. The complaint set up that the sale was void, among other things, for the following reasons: "That the description of the land set out in the complaint did not contain any proper description of the land, and was not sufficient to identify the land, in that it did not indicate the section, township, and range"; and, further, "that the complaint showed only the amount of taxes due, and did not show the total amount due, including penalty of 25 per cent., as required by the statute." The appellee prayed that the decree be set $35.20 aside, and that the deeds executed thereunder be canceled and its title quieted. Description. R. E. Gardner W. 1⁄2 6-3-7. (and other lands). Upon the filing of the complaint the clerk issued a warning order in the form prescribed by the above statute, in which he called upon The court found that the decree condemn. ing the lands and ordering same to be sold for the delinquent assessments was void, and For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes Nei of the particular tracts of land ordered to be [3] But the description of the land in the complaint was sufficient to give the court jurisdiction over the particular tract of land, which was correctly described by the clerk in the notice he gave under the statute, and which is correctly described in the decree under which the land was sold. In order to give the chancery court jurisdiction over the particular tract of land in controversy, it was essential that the board file a complaint in which the lands were described with sufficient certainty to enable the [4] All the lands in Crittenden county are clerk to give the notice in the form prescrib- in townships north of the base line and east ed by the statute, describing the lands with of the fifth principal meridian. Of this the such accuracy that the alleged owners and court will take judicial cognizance. It was all other persons claiming any interest what-therefore not necessary to put the word ever in the lands would be advised, by read-"north" after the figure designating the towning the notice and referring to the complaint, of what particular lands were involved in the proceeding for the sale of the same. In Lumber Co. v. McDougal, 101 Ark. 390, 142 S. W. 836, an attack was made by the Lumber Company upon the validity of the commissioner's deed, made in pursuance of a sale by order of the chancery court on lands that were sold for levee taxes under the authority and in pursuance of the act creating the levee district. In that case we said: ship, nor the word "east" after the figure designating the range. Under our revenue system lands are listed so that opposite each name follows in order, the description of each tract by section, or the largest subdivision of which the same is capable, designating the number of the section and part thereof, the congressional township or survey, and the value of each tract. The law prescribes the form in which lands shall be listed on the return of the assessor, as follows: of land in each congressional township shall be "In making such return each separate tract placed in the numerical order of the section, * * * which returns shall be as near the following form as practicable: "This is a collateral attack upon a domestic judgment of a court of general jurisdiction. It is well settled that every presumption will be indulged in favor of the jurisdiction of such court, and the validity of the judgment which it enters. Unless it affirmatively appears from the record itself that the facts essential to the jurisdiction of such court did not exist, such collateral attack against the judgment rendered by it will not prevail. It is true that a judg-* ment may be attacked collaterally where, by the record, it is shown that there was want of jurisdiction in the court rendering it, either of the subject-matter or of the person of the defendant." As this was a proceeding in rem, the filing of the complaint correctly describing the lands was necessary in order to give the court jurisdiction of the subject-matter. See McCarter v. Neil, 50 Ark. 188-191, 6 S. W. 731. Therefore, unless the land was correctly described so as to enable the clerk to give notice of the particular tract involved, the record itself would show that the court would have no jurisdiction, and this would render the decree void even on collateral attack, as this is. [2] A complaint correctly describing the lands under the acts is the primal step in the proceeding. It is the basis upon which the clerk must act in giving the notice provided for. No presumptions can be indulged in favor of a decree grounded upon a complaint that does not contain a correct description Name of Part of Sec- Town- Range. No. of | Val- Kirby's Digest, § 6976. Acres. ue. This order of the listing of the lands follows the description of the government survey as to the numbers designating, respectively, the section, township, and range. [5] In the act creating the St. Francis levee district it is provided: "The said lands shall be entered (for assessment) upon such books in convenient sub-divisions as to survey by the United States government." The court will take judicial notice of the fact that lands are described under the United States government survey by designating first the section, then the township, and then the range, in the order named. When these provisions of our revenue law and the act creating the St. Francis levee district, in regard to the manner in which lands are to be listed and described, are taken into consideration, there can be no room for uncertainty or mistake in the description of the lands contained in the complaint filed by the board of directors of the St. Francis levee district. An examination of the complaint that was filed in the chancery proceeding to condemn for delinquent taxes shows that the board of directors asked that a lien be declared and the lands sold for the amount of the taxes and penalty, together with interest and costs due on each tract of land respectively. The notice published by the clerk informed the owners and all others interested that they were required by law "to appear and make defense to said suit or the same will be taken for confessed and final judgment will be entered directing the sale of said land for the purpose of collecting said delinquent levee taxes, together with payment of interest, penalty, and costs. which will accrue as allowed by law." The letter and figures "W. 1⁄2 6-3-7" under a decree was rendered for the sum of $46.88, the word "description," as used, could only which rendered same void. mean the west half of section 6, township 3, range 7; and, since all the lands in Crittenden county are in townships north and ranges east, necessarily the words "north" and "east" must be understood as following the figures designating the numbers of the township and range. This description, "W. 26-3-7," was correctly interpreted by the clerk as meaning the west half of section 6, township 3 north, range 7 east, and, accordingly, the notice was published giving the full description of the land, writing out the words "section," "township," and "range" preceding the numbers. Considering the manner in which lands are described, and the subdivisions thereof under the United States government survey, and that they are to be listed and described in that order under our revenue system and the act creating the St. Francis levee district, we are of the opinion that the description contained in the complaint was susceptible of no other interpretation than that placed upon it by the clerk in the notice and the court in rendering the decree for the condemnation and sale of the land. In Cooper v. Lee, 59 Ark. 460, 462, 463, 27 that the decree was entered for an excessive S. W. 970, we said: The land was described in the complaint in the chancery proceeding so that any one having sufficient education to read and enough intelligence to comprehend the usual and ordinary terms in which descriptions of land are couched could readily understand what lands were involved. No landowner nor any one interested in these lands, if they exercised any sort of diligence, could have been mistaken as to the description of these lands. The complaint and the publication by the clerk gave notice to the world that the lands, among others, sought to be condemned and sold for delinquent levee assessments were the west 1⁄2 of section 6, in township 3 north, range 7 east, in Crittenden county. The chancery court therefore had jurisdiction, and its decree, under which appellants claimed, is invulnerable to the collateral attack made upon it by the appellee. [6] The appellee contends that the chancery sale was void because the complaint specified that the amount of taxes was $35.20, and that the amount of the penalty and interest was not mentioned; that the warning order contained the same sum; but that The decree recites that the total tax, penalty, and costs allowed by law and adjudged against the tract of land in controversy was $46.88. It also shows that the cause was heard upon the complaint and exhibits, proof of publication, and oral evidence taken at the bar of the court. These recitals of the record are sufficient to justify the decree for the amount named therein. There is no showing amount of taxes, penalty, and costs. It will be presumed that the chancery court ascer tained the correct amount and that the decree reflects that sum. The decree of the chancery court, therefore, in the suit at bar, setting aside the sale of the lands and canceling the deeds under which appellants claim title, was erroneous, and it is therefore reversed, and the cause will be remanded, with directions to dismiss appellee's complaint for want of equity. HART, J., dissents. O'BARR et al. v. SANDERS et al. (No. 57.) (Supreme Court of Arkansas. June 22, 1914.) 1. DRAINS (§ 90*)—DRAINAGE DISTRICTS-DELINQUENT DRAINAGE TAXES-COLLECTION— DECREE-VALIDITY. Acts 1905, p. 429, as amended by Acts district of described territory, and authorizing 1909, p. 706, establishing a levee and drainage the enforcement of delinquent drainage taxes by proceedings in the chancery court, furnishes the remedy to be thereafter pursued for the collection of delinquent taxes, no matter for what year they accrued. [Ed. Note. For other cases, see Drains, Cent. Dig. §§ 91-101, 103; Dec. Dig. § 90.*] 2. JUDGMENT (§ 518*)-COLLATERAL ATTACKPROCEEDINGS. Where the chancery court had jurisdiction to render a decree under which lands were sold for drainage taxes, an action to quiet title against the sale is a collateral attack on the decree, and cannot be based on any matter which the chancery court must have adjudicated be fore rendering the decree. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 961, 962; Dec. Dig. § 518.*] For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |