Various acts have been passed to enable the State to perfect its title to lands forfeited to it for nonpayment of taxes. The primary purpose of all this legislation has been to compel the payment of the *Page 228 taxes due the State. The reluctance of the courts to see one lose his lands for the small per cent. of its value represented by the taxes due on it has resulted in many very technical constructions of these statutes, all of which assumed the invalidity of the tax sales, otherwise confirmations would not be required, as a valid tax sale requires no confirmation.
Finally, at its 1941 session, the General Assembly passed an Act, No. 423, p. 1227, which did not change the practice and procedure through which confirmation decrees might be obtained, but was passed to settle the effect which should be given such decrees. The Act allowed owners of lands embraced in such decrees a year after the rendition thereof to move for their vacation upon any ground which would have constituted a meritorious defense to the complaint upon which the decree was rendered. In other words, the landowners were given a year after the rendition of the decree to interpose any defense which might have been available before the rendition of the decree. It was enacted that within this year any such attack shall be taken to be a direct attack, but that any attack after the one-year period should be taken to be a collateral attack, and should be wholly ineffectual.
The present suit is, therefore, a collateral attack upon the confirmation decree, as it was not instituted for more than one year after its rendition, and we may only inquire into the jurisdiction of the court to render it. Certainly the fact that the land was occupied and not wild and unimproved would not affect the jurisdiction of the court. Taxes must be paid on occupied lands as well as on those which are wild and unimproved, and tax sales may be confirmed in either case. Certainly no one would contend that a tax sale could not be confirmed because the land was in the actual possession of the owner. The validity of the confirmation decree does not depend upon this fact, as it is as valid in one case as in the other, and in either event an attack upon the decree which is not brought within one year after its rendition is a collateral attack thereon. The Act so provides. Now one exception, and only one, is made as to the effect to be given *Page 229 these decrees, and that is that this one-year limitation shall not apply to the owner who had actually paid his taxes. He may attack the decree at any time, but no other landowner is given that right.
The majority opinion, however, has enlarged the class who are not barred by this one-year limitation. The Act is held not to apply to owners in possession, when the decree was rendered. This is upon the theory that the Act is one of limitations and that such limitation is not applicable to persons in possession.
But to reach that conclusion something must be read into the Act which the General Assembly failed to incorporate in it. The case of Schuman v. Walthour, 204 Ark. 634,163 S.W.2d 517, did not decide that Act 423 was a statute of limitations, although it was inadvertently referred to as such. That question was not presented. The point presented and decided was, whether the Act was prospective only, and we held that it was. The Act is not, properly speaking, a statute of limitations, although it possesses the characteristics of such a statute. It is a statute more properly to be said, which confers the right to make an attack upon the confirmation decree and permits that right to be exercised within a year after its rendition. If exercised within one year, the attack is direct, if not exercised within that time, the attack is collateral. A condition is imposed as to the time within which the direct attack may be made, and is as applicable to occupied lands as it is to those which are wild and unimproved. The legislation did not contemplate such a distinction and it is certain that it expressed no such purpose.
Legislation which confers the right or privilege, but which limits the time within which it may be exercised, is not a statute of limitations, although it has the effect which a statute of limitations would have.
At 7 of the chapter on Limitation of Actions, 34 Am.Jur., p. 16, it is said: "A statute of limitations should be differentiated from conditions which are annexed to a right of action created by statute. A statute *Page 230 which in itself creates a new liability, gives an action to enforce it unknown to common law, and fixes the time within which that action may be commenced is not a statute of limitation. It is a statute of creation, and the commencement of the action within the time it fixes is an indispensable condition of the liability and of the action which it permits. The time element is an inherent element of the right so created, and the limitation of the remedy is a limitation of the right. Such a provision will control, no matter in what form the action is brought. The statute is an offer of an action on condition that it be commenced within the specified time. If the offer is not accepted in the only way in which it can be accepted, by a commencement of the action within the specified time, the action and the right of action no longer exist, and the defendant is exempt from liability."
The purpose and effect of this Act 423 of 1941 is to make suits brought within one year a direct attack, and suits brought after the year a collateral attack, and such an act is not a statute of limitations. By its expressed provisions, all suits not brought within one year are collateral attacks, save only those who have paid the taxes for which the land sold. But for this proviso it would apply even to the landowner who had paid his taxes, as the confirmation decree imports the finding that the taxes had not been paid.
In Worthen v. Ratcliffe, 42 Ark. 330, it was said: "But, in truth, every question with respect to the assessment of the land in controversy, or the nonpayment of taxes, or the regularity of the proceedings of the sheriff and collector, is concluded by that decree (of confirmation); provided the court which rendered it had jurisdiction of the petition (for the confirmation), and provided the decree was not obtained by a fraudulent misrepresentation or concealment of facts. Thomas v. Lawson, 21 How. 331, 16 L. Ed. 82; Buckingham v. Hallett, 24 Ark. 519." See, also, Williamson v. Mimms, 49 Ark. 336,5 S.W. 320; McCarter v. Neil, 50 Ark. 188, 6 S.W. 731; Boehm v. Botsford, 52 Ark. 400, 12 S.W. 786; Burcham v. Terry, 55 Ark. 398, 18 S.W. 458, 29 Am. St. Rep. 42; *Page 231 Lonergan v. Baber, 59 Ark. 15, 26 S.W. 13; Martin v. Hawkins, 62 Ark. 421, 35 S.W. 1104; Pattison v. Smith,94 Ark. 588, 127 S.W. 983; Porter v. Dooley, 66 Ark. 1,49 S.W. 1083.
There was here no offer to redeem or attack made, within the year allowed for that purpose by Act 423 and the decree became impervious to the collateral attack here made on it.