This is a suit to quiet title. The complaint was filed by the Parrs to cancel a tax deed held by Matthews. The court found that the title to the land was in the plaintiffs, unless it was divested by the tax deed ; that the tax deed was good on its face but void in fact; that the land was wild and unimproved ; that the defendant, the purchaser at tax sale, had never been in possession, but had paid the taxes for the years subsequent to his purchase; and it was decreed that the adult plaintiffs were barred of their remedy and that the minor plaintiff should be permitted to redeem. The plaintiffs appealed.
The court’s finding of facts is sustained by the proof.
The land was sold in December, 1869, for the taxes of 1868. The tax proceedings were had under the act of February 19, 1869 — an act passed in aid of the revenue law of July 23, 1868. Pack v. Crawford, 29 Ark., 492; Cole v. Moore, 34 Id., 582 ; Hickman v. Kempner, 35 Id., 505.
1.Taxes: Ill egalery.
2 Tax Sales: I legal evy: umptions:
3. same ; Same Lapse of time. The assessor caused his return of the assessment of real property to be filed by the county clerk pn the 9th of June, 1869. The county court met-within’15 days thereafter, as the act required, to equalize the assessments, and after a series of adjournments, on the 15th of July, 1869, ordered that a tax of one per cent, for county purposes be laid upon the taxable propeity, presumably for the year 1868. There was no evidence of the levy of any other taxes for that year. Rut as the act makes the tax deed prima facie evidence of title in the grantee, the presumption is induulged, in the absence of controverting evidence, that the taxes were laid according to law. The supplemental act of February 19, 1869, makes no provision for the levy of taxes. That power was governed, at that time, by the act of July 23, 1868 When the supplemental act was passed, it seems .to have been taken for granted that the county courts had performed the duty of levying taxes as prescribed by the revenue law then in force, and the supplemental act was intended to authorize a subsequent assessment and collection of the taxes already levied. It was the policy of the revenue act of 1868 to cause the taxes to be laid before the property assessment was completed. The power to levy taxes for the year 1868 expired with that year by virtue of the 83d and 84th sections of the act of July 23. 1868. Moreover, that act and its supplement of 1869 were expressly repealed by the 159th section of the act of April 8, 1869, before the levy of the tax in question, but were continued in force for the sole purpose of collecting the taxes due tor 1868. It follows that there was no legislative authority for the county court to lay taxes in July, 1869 for the year 1868. The county tax of one per cent, was therefore laid without authority of law and was an illegal exaction. The land in question was sold to state, county and other taxes. The county tax for which it was sold amounted to just one per cent, of its assessed value. In the absence of other evidence, we would indulge ttie presumption that this tax had been regularly laid by the proper authority-ia the year 1868. But the record shows, as we have seen, that such a tax was levied in 1869 for 1868. It was the duty of the county court alone to perform this act, and when it is proved to have been done on one date, there is no presumption that it was done on another. It will not be presumed that the fact is otherwise than as proved by the record of the court adduced in evidence. Galpin v. Page, 18 Wall., 364. The proof that the county tax, for the non-payment of which the land appears to have been sold, was illegally laid upon it, rebutted the presumption of regularity raised by the deed, and cast upon the tax purchaser the onus of showing, it he could, that a •similar tax was legally assessed. No effort was made to do so. It follows that the land was sold for an illegal tax. That vitiated the deed. The bare lapse of time without possession, did not cure the defect. Radcliffe v. Scruggs, 46 Ark. 96.
The court should have cancelled the tax deed upon the payment of the taxes, &c., legally assessed against the land -and the taxes subsequently paid by the purchaser.
Reverse the decree and remand the cause with instructions ■to enter such a decree.