(on rehearing). It is earnestly insisted by counsel for appellee that the decision of the court is contrary to the principles of law decided in Ballard v. Hunter, 74 Ark. 174; Pattison v. Smith, 94 Ark. 588, and Crittenden Lumber Co. v. McDougal, 101 Ark. 390.
We do not agree with counsel in this contention. In each of those cases the court had under consideration the act of 1895, regulating the aale of lands for nonpayment of levee taxes in the St. Francis Levee District.
The statute under consideration required constructive notice to be given nonresidents of the county in which the lands were situated and to unknown owners, and for personal service upon residents of the county, and in all cases where the lands are occupied.
In each of the cases above recited the court was dealing with the lands of nonresidents which were not occupied. It is true that the notice required to be given them was essentially the same as the notice required under the present statute, but the question here presented for review was not discussed or decided' in either of those cases.
In the first two cases the court held that it was not necessary to name the true owner, either in the complaint, or in the notice, and that the decree entered upon snch notice was not open to collateral attack by reason of the failure to name the true owner in the notice, or to make him a party to the suit.
In the last mentioned case the land in controversy was set out and described in the notice, with the supposed owner noted as Sweet Brothers. Personal service was also had upon Sweet Brothers as the supposed owners of the land. The court said that the mere fact that Sweet Brothers were noted as the supposed owners of the land would not alter the holding of the court, because, by the provisions of the statute, the proceeding is in the nature of a proceeding in rem, and that it is immaterial that the ownership of the land is incorrectly alleged in any of the proceedings.
It is claimed that this language is conclusive of the present case, and that it became immaterial that Adams was noted as the “supposed owner.” The language used in any opinion must be construed with reference to the facts as well as the law under discussion. To make a tax sale valid, observance of every safeguard to the owner created by the statute is imperatively necessary, and it is generally held that a notice giving the name of the owner incorrectly invalidates the sale. Marx v. Hanthorn, 148 U. S. 172. In recognition of this rule, the Legislature provided that it should be immaterial that the ownership of the land should be incorrectly alleged in the proceedings. The object of the statute was to prevent the sale from being invalid, because the name of the owner of the land was incorrectly given in any of the proceedings. Sweet Brothers were noted as the supposed owners, both in the complaint and in the notice. Personal service was also had upon them by the commissioners. This indicated that the commissioners believed that they were the owners. The lands were wild and unoccupied, and there was nothing to put the commissioners on notice that Sweet Brothers were not the owners. Hence the court correctly held, under the facts of that case, that the sale was not invalid, because the ownership of the land had been incorrectly alleged in the proceedings.
In the instant case the facts are essentially different, and we are asked by a refinement of reasoning to extend the rule there announced to cases where the ownership of the land was incorrectly alleged in the notice as the result of gross carelessness on the part of the commissioners, and the majority of the court declines to do so.
It has been well said that the well being of every community requires that the title to real estate shall be secure, and that no principle is more vital to the administration of justice than that no man shall be condemned in his person, or property, without notice and an opportunity to make his defense. Sales of land for the nonpayment of taxes are made in execution .of statutory powers, and, to render them valid, there must be a rigid adherence to the directions and the forms of the statute.
This rule was recognized by this court in the case of Van Etten v. Daugherty, 83 Ark. 534. It was a proceeding for the collection of levee taxes under the St. Francis Levee Act as amended by the act of 1895, above referred to. In that case the court held that, if there is an occupant upon the land, a judgment against a delinquent taxpayer, based upon constructive service by publication, is void on collatreal attack where the defendant was a resident of the county, or where there was, at the time the notice was published, an occupant upon the land. The reason given was that the statute required personal service in such cases, and that the mode of obtaining jurisdiction prescribed by the statute must be strictly pursued. The court said that the proceedings derived their only sanction from the statute, and that the courts' must see that its provisions as to jurisdiction are complied with, or ’their. judgment will be utterly void and subject to collateral attack.
Under the provisions of the present act there is no provision for personal service. The proceedings are upon constructive service, whether the owners are residents or nonresidents either of the county, or of the State, and whether the lands are occupied, or unoccupied. The statute expressly declares that the proceedings shall be in the nature of a proceeding in rem, and that it is immaterial that the ownership of the lands shall be incorrectly alleged in the proceedings.
The statute also provides that the notice shall contain a description of the lands, together with a list of the supposed owners. The object of constructive notice is to put the owner in possession of such facts as will lead to actual notice and thereby enable him to make his defense. Hence the difference between a.proceeding strictly in rem and a proceeding’ qtoasi in rem, or, what amounts to the same thing, a proceeding in the nature of a proceeding in rem, is vital. As we pointed out, there is a good reason for requiring the supposed owner to be named in the notice. If the former be named in the notice, there will be more likelihood of actual notice being received by the owner. ' The notice will inform him of what is alleged against him in the complaint. Hence' the necessity for the commissioners, in good faith, to carry out the provisions of the statute.
As we have already seen, while the statute requires them to designate the supposed owners, it relieves them from the consequences of mistakes on their part by providing that a mistake in the allegations of the ownership of the land shall not be material. In other words, it does away with the rule that the giving of the name of the owner incorrectly invalidates the sale, but the Legislature did not intend to bind the owner where the commissioners named a person as the “supposed owner” whom they knew had no interest whatever in the land or when they acted with gross carelessness in the matter.
As pointed out in our original opinion, the use of the words, “supposed owner,” was put in the statute for a useful purpose. It relieved the commissioners from deciding between adverse claimants and from going to unnecessary trouble to trace the title of the true owner, but the commissioners were not entirely relieved from responsibility in the matter. The. “supposed owner,” according to the dictionary meaning, would be the person believed to the owner. Here the commissioners had charge of constructing the road. It was made their duty to supervise the assessment of benefits upon the lands within the district. The land in question was a valuable farm, and was occupied by its true owner through his tenant. The person who was designated as the ‘‘supposed owner” had no interest whatever in the land, and, so far as the record discloses, did not claim to have any.
Under the circumstances, the commissioners should be charged with knowledge that the land belonged to the person in possession of it, and were guilty of gross carelessness in naming another person as the “supposed owner. ’ ’
Therefore, the commissioners did not comply with the statute with regard to the notice, and the owner is not bound by the proceedings, any more than he would be bound by a mistake with regard to his own name where the statute contained no provision that it should be immaterial that the ownership of the lands should be incorrectly stated in the proceedings. In short, a majority of the court is of the opinion that the designation by the commissioners, under the statute, of the person as the “supposed owner,” whom by the exercise of the slightest care they could have known was not such owner, is not a compliance with the statute, and that notice to such person is not notice to the “supposed owner,” or the person they believed to be the owner as required and the sale is therefore invalid.
The rule laid down in Cassidy v. Norris, 118 Ark. 449, is not applicable for the reason pointed out in the original opinion. There the proceeding was strictly in rem, and it was the duty of the court, as a prerequisite of the exercise of jurisdiction in the premises, to determine whether or not tlie owner was unknown.
Here the statute proceeds against the “supposed owner,” and it is, therefore, a proceeding against a person in respect to the res. Therefore, as above stated, a majority of the court is of the opinion that notice to one who is not the “supposed owner” is not the notice required by the statute. The owner would be no more bound by constructive notice under the circumstances than he would be bound by constructive services against the nonresident owner under the St. Francis Levee Act as amended by the Acts of 1895, where the lands of such nonresident were occupied.
This is not a case where there was a mistake in the ownership of the land alleged in the proceedings, but it is a case where the statute required the “supposed owner” to be constructively summoned, and some other person than the “supposed owner” was named in the notice. If the statute had required the proceedings to be against the person in whom the record title last appears, it could not be said that the owner of the land would be bound by a proceeding against some other person than the one in whom the record title last appears. So here, the statute requires the supposed owner to be named in the notice, and it is not .a compliance with the statute to proceed against some other person. To sum up: the lands in question constitute a valuable farm which was in possession of the owner through his tenant at the time the proceedings were had; the duties of the commissioners required them to become familiar with the lands of the district, and they are charged with notice of the owner’s possession. There is nothing in the record to show that they believed Adams to be the “supposed owner,” and to hold the sale valid would be contrary to the principles of natural justice and the case is one manifestly calling for the interposition of a court of equity. • The proceedings were not in compliance with the statute, and did not constitute in form, much less in spirit; due process of law.
It follows that the motion for rehearing will be denied.
McCulloch:, C. J., and Smith, J., dissent.