Morrow v. James , 69 Ark. 539 ( 1901 )

Hugiijes, J.,

(after stating the facts). We are of the opinion that there is no sufficient evidence to show that appellant had ratified and confirmed the sale of her interest in the land in controversy by Olmstead, her guardian. We think that the record shows that appellee undertook and was obliged to redeem the land from taxes, and could not therefore set up the tax purchase in bar of plaintiff’s right of action. ■

Before the statute of limitations of five years could apply, there must have been confirmation of the sale made under the order of the probate court. Without confirmation, there was no sale. Maxwell v. Campbell, 45 Ind. 360; Titman v. Bicker, 43 N. J. Eq. 122; Mulford v. Beveridge, 78 Ill. 455; McVey v. McVey, 51 Mo. 406; Waits v. Cook, 24 Kan. 278; Flemming v. Roberts, 84 U. C. 432; Wells v. Rice, 34 Ark. 346; and Arkansas eases passim. It appears that no report of the sale was made by the guardian; that about four years after the sale Stephen James, the purchaser, presented to the court the two deeds made to him by the guardian, and asked their approval; and that the deeds were approved by order of the probate court. Neither the guardian of appellant nor appellant herself was present, or was represented in the court at the time, as the record shows. Wherefore there was no confirmation of the sale, and therefore no sale. The statute of limitations of five years could not apply, because there was no sale. Mississippi Morris, appellant’s mother, had a life estate in these lands, and she died in November, 1885. This suit was brought to the July term of the court for 1889, about three years and eight months after the death of appellant’s mother, when the right of appellant accrued, the life estate being then determined. It follows, therefore, that the seven years’ statute of limitations had not barred the appellant’s right of action when her suit was commenced. The judgment of the lower court is reversed, and the cause is remanded for a new trial. The appellee should be allowed for any amount he paid to redeem the land from taxes.