(after stating the facts). First: The statute provides that: “In case any person or persons claiming title to the land oppose the confirmation of sale, then the court shall try the validity of the sale, and, if valid, confirm it, but, if the sale has been made contrary to law, the court shall annul it.” Sec. 671, Kirby’s Digest.
Under this statute, if any one “allege and prove such a state of facts as will show that he might claim in good faith some interest in or right to the land,” he may resist confirmation, and by so doing make it the duty of the court to “try the validity of the sale.” He is not required to show a valid title, but can assert, in good faith, a claim of title and avail himself of the privilege of resisting the confirmation. Thweatt v. Howard, 68 Ark. 430; Beardsley v. Hill, 71 Ark. 211. One who has color of title, and in whose name the taxes have been assessed, and who has paid taxes on the land, may in good faith claim that he has an interest in the land, and these facts will give him such an interest as will entitle him to oppose confirmation under the above statute.
Taxes are a lien on the particular land upon which they are assessed, and whoever discharges the State’s lien by the payment of those taxés certainly has an interest in the land, to the extent of the amount of taxes paid. Sections 7112, 7113, Kirby’s Dig.; Belcher v. Harr, 94 Ark. 221; Seldom v. Dudley E. Jones Co., 89 Ark. 234; Merrick v. Hutt, 15 Ark. 337.
' This interest itself is sufficient to enable him to invoke the privilege of opposing confirmation granted by the statute.
Second: The only issue involved in this proceeding is, was the sale, under which appellant claims, valid? Beardsley v. Hill, supra. As we construe the pleadings on the part of appellees, they only seek to prevent the confirmation of appellant’s alleged title. There is no effort on their part to redeem from the tax sale. While they do ask that the “cloud over defendant’s title be removed and that, plaintiff’s tax title be cancelled,” the court did not grant them any affirmative relief, and it would have been improper in this proceeding ■for the court to have done so. Appellees are not estopped by their pleading to call in question the validity of the tax title of appellant, and to have the court determine that as the only issue in the case.
Third: The finding of. the chancery court that no levy of a school tax for the year 1904 was properly made by the levying court is correct. True, the appellant’s deed was prima facie evidence of a valid title in appellant (Kirby’s Dig., § 7104; Alexander v. Bridgford, 59 Ark. 209; Sawyer v. Wilson, 81 Ark. 325), but such recitals are only prima facie evidence. Cairo & F. Rd. Co. v. Parks, 32 Ark. 131. Here the records of the levying court for the October term, 1904, do not show that any taxes for school purposes were levied by such court as the law requires. Sec. 7595, Kirby’s Digest, provides, among other things, that “all taxes voted for school purposes by any school' district shall be levied by the county court at the same time the county taxes are levied,” etc. But the records of the levying court that were put in evidence in this case (and the only records there were “with reference to the school tax levy”) only show that the levying court ascertained that School District Number 97 had voted a tax of 2)^ mill for school and a tax of 2)/¿ mills for building, or a total tax of 5 mills for school purposes. But the records do not show that the corut proceeded to levy the tax according to the amount voted as the law requires. Murphy v. Harbison, 29 Ark. 340.
The testimony by deposition of members of the levying court to the effect that such school taxes were levied in the manner required by the statute was clearly incompetent. The statutes regulating the levying of taxes require that the vote shall be taken, and that the clerk shall keep in the county court record a fair written’record of the proceedings of said court, and the names of those members of the court voting in the affirmative and of those voting in the negative on all propositions or motions to levy the tax. Secs. 1496, 1498, Kirby’s Digest.
If the school tax of 5 mills had been levied, that fact could only be shown by the record. As was said by this court in Hodgkin v. Fry, 33 Ark. 716-721, quoting from the Supreme Court of Michigan: “Every essential proceeding in the course of the levy of taxes must appear in some written and permanent form in the record of the bodies authorized to act upon them.” Moser v. White, 29 Mich. 59. See also Taylor v. State, 65 Ark. 595; Logan v. Land Co., 68 Ark. 248; Martin v. Barbour, 140 U. S. 684. It was proper for the report of the committee appointed by the court to report on the amount of taxes voted by the various school districts to be spread upon the records of the levying court; that was but a part of the proceedings of the court required to be spread upon the record. But the fact of this report having been spread upon the record falls far short of showing that a majority of the members of the levying court, or that the members unanimously, voted to levy the tax. This had to be shown by the record. There is no record showing whatever that any vote was taken by the members of the levying court to levy the tax or to adopt the report of the committee and thereby vote the tax. The recording of the report did not, ipso facto, levy the tax. That could only be done by a vote of the members of the levying court. Secs. 1496, 1498, 1499, Kirby’s Digest. To be sure, if the record had shown that the members of the levying court had voted unanimously to levy the tax, then it would have been unnecessary to give the names of the members voting for the levy. Hilliard v. Bunker, 68 Ark. 340. But the record does not show that there was a vote at all upon the question.
As there was no record evidence that the tax was levied, the court was correct in finding there was no proper levy, and that the tax sale was therefore void.
Fourth: Appellant did not invoke the limitation provided by section 7114, Kirby’s Digest, in the court below, and therefore should not now be allowed the benefit of that section, even if it applied. Besides, the statute does not apply to a case where the tax sale is void because of a failure to levy the taxes.
Fifth: This is purely a statutory proceeding to confirm a tax title, and the only issue, as we have said, was the validity of the alleged sale under which appellant claims. Neither the parties nor the pleadings warranted the court in converting it into an adversary suit to have deeds cancelled and a lien declared against the lands for taxes paid.
The judgment is affirmed.