Sanders v. Ellis , 42 Ark. 215 ( 1883 )

OPINION.

Taking the allegations of the answer to the interplea to be true, a court of equity can not treat the transaction between Mr3. Ellis and Rogers otherwise than as a redemption by her of the land from tlie tax sale.

Almost any right, either at law or in equity, perfect or inchoate, in possession or in action, or whether in the nature of a charge or incumbrauce on land, amounts to such an ownership as will entitle the party holding it to redeem. Woodward v. Campbell, 39 Ark., 584.

Mrs. Ellis had an inchoate right of dower in the lot, which might have been lost to her by the tax sale; she and her children were in possession of the lot and improvements thereon, as the homestead of her absent husband, when the tax sale occurred, and at the time Rogers transferred to her his certificate of purchase; she was enjoying the rents and profits of the property; and she may be regarded as the agent and trustee of her husband. Under all these circumstances, if not her duty, she certainly had a right to redeem the property from tax sale. And her relation to the property was such that she could not have acquired title to it by purchasing it at the tax sale, and did not acquire title as against her husband and his creditors, by purchasing or redeeming from Rogers. Perry on Trusts, sec. 678, etc.; Frierson, ex., et al. v. Branch, ex., 30 Ark., 464; Jacks v. Dyer et al., 31 Ib., 344; Guynn et al. v. McCauly et al., 32 Ib., 111; Pleasants et al. v. Mock et al., MS.

If Ellis had, on absconding, placed a mere stranger in charge of the lot and improvements, to occupy and have the use of the property in his absence, and furnished him no money to pay the taxes, such stranger in the use of the premises could not acquire a valid title thereto by permitting them to he sold for taxes, and purchasing at the sale, or procuring another purchaser to transfer to him his certificate of purchase. Cooley on Taxation, pp. 345-7.

The obligation and duty of the wife left in the use of the premises could not be less than that of a stranger, nor could her right to acquire title to the property through a tax sale be greater.

The decree must be reversed, and the cause remanded to the court below, with instructions to overrule the demurrer to the amended answer to the interplea, etc.