On Rehearing
The District, intervening, alleged: (a) It acquired title “in satisfaction of delinquent . . . taxes . . . for 1931 and 1932, . . . under [Miller Chancery Court] decree of September 17,1934.” (b) The claim of Terry was invalid because his donation certificate, deed, and possession, being based on a tax sale -by the county collector at a time when title was in the District, was void, (c) The District was entitled to betterments aggregating $2,059.81, which included delinquencies for years the liens were foreclosed.
We sustained appellant’s allegation that the State did not acquire title, but gave effect to § 8925 of Pope’s Digest.
The District, as purchaser, is in no stronger position than would be an individual who had bought in the circumstances of this case. It is said in one of the briefs on rehearing that our holding that the District cannot recover 1931 and 1932 assessments, “. .. . flies in the face of every opinion of the Supreme Court since Turley v. St. Francis County Road Improvement District No. 4, 171 Ark. 939, 287 S. W. 196.” In the Turley case it was held that, while sale to the State for nonpayment of general taxes had the effect of suspending enforcement of a special road tax lien, the obligation was not extinguished. In commenting upon § 5433 of Crawford & Moses’ Digest, Chief Justice McCulloch said:
“The words 'all demands, executions, incumbrances or liens whatsoever created’ have no reference to the State’s paramount lien for taxes. But the words which follow unmistakably carry the meaning that the special taxes of the improvement district shall continue until fully paid, and are not extinguished . .' . [and may be] enforced when the land goes back into private ownership.”
The principal point decided in the Turley case was that the District did not lose its lien because of the State purchase.
In the appeal before us the District, as proprietor, permitted Terry to occupy within the meaning of $ 8925, mistakenly believing, as it now appears, that purchase at the foreclosure sale and confirmation prior to the‘first Monday in June, 1935, relieved the District of the necessity of guarding against consequences of possession by one who donated from, the State — this because, as it is conceded, the State was without power to sell. But it did sell, and the land was certified to the Land Commissioner, who issued a voidable certificate. Unfortunately, from the District’s standpoint, the certificate was color of title. Bradbury v. Dumond, supra.
Effect of the two-year statute can only be avoided by overruling many cases, beginning with City of Fort Smith v. McKibbin, 41 Ark. 45. See Board of Levee Inspectors of Chicot County v. Southwestern Land & Timber Co., 112 Ark. 467, 166 S. W. 589; Western Clay Drainage District v. Wynn, 179 Ark. 988, 18 S. W. 2d 1035; Hart v. Sternberg, 205 Ark. 929, 171 S. W. 2d 475.
Other than the limitation provided b3r § 8925 of Pope’s Digest, Terry did not expressly plead that the District’s right to collect assessments for 3rears subsequent to 1932 was barred.
The petition for rehearing is denied.