Smith v. Thornton , 74 Ark. 572 ( 1905 )

Riddick, J.,

(after stating the facts.) This is a suit in equity to redeem land forfeited and sold for the nonpayment of takes for the year 1893. The plaintiff inherited the land from h^r son, James B. Smith, who was insane at the time of the tax sale and up to the day of his death. She commenced the action to redeem within two years after his death.

The question raised by the demurrer to the first paragraph of the answer is whether the fact that the tax sale under which the defendants claim had been confirmed by a decree of the court ■cut off the right of the plaintiff to redeem? Now, the effect of this decree confirming the tax title must depend on the statute which permits such confirmation. This statute directs that when any holder of a tax title desires to confirm the same he shall publish a notice calling on all persons who can set up any right to the land in consequence of any informality or irregularity connected with the sale to show cause against the confirmation at the next term of the court. It further provides that, if no cause be shown why the sale should not be confirmed, the court shall enter a decree confirming the same, and provides that such decree “shall operate as a complete bar against any and all persons who may- hereafter claim the land in consequence of informality or illegality in the proceedings” in reference to the tax sales. Kirby’s Dig. § § 662 to 673.

The decree that was entered in this case-follows the language of the statute very closely. It confirms the tax sale, and directs that “any and all persons who may claim said lands, or any interest therein, or any part thereof, or who may set up any right or title thereto in consequence of any informality, illegality or irregularity in said sales, or the proceedings under which the lands were forfeited or sold, be, and they are, hereby forever barred and enjoined from asserting or attempting to assert such claim, interest or right or title against petitioner, its successors or assigns.” This decree, it is plain, cuts off all-attacks upon the tax title by reason of any informality or illegality in.the tax sale, but the plaintiff does not claim the land by virtue of any defect in.the tax sale. She concedes that the tax sale is valid, and relies solely on the right of redemption given by the statute. We are therefore of the opinion that her right to redeem was not affected by the confirmation decree. That decree only adjudged that the tax sale was valid, and cut off all such interests that were affected by a valid tax sale, but had no effect on those holding rights that were not affected by such tax sale. Buckingham v. Hallett, 24 Ark. 519.

But it is said that the confirmation statute gives the minors and persons of unsound mind only one year after their disabilities have been removed in which to attack the decree, and that, as the insane person who claimed this land was dead before the proceedings to confirm were begun, and as the plaintiff was laboring under no disabilities at the date of the confirmation decree, her rights in the land were conpletely cut off by such decree. The provision in the confirmation statute which gives-to minors and persons of unsound mind one year after their disabilities are removed “to appear and contest the title to said land” has no reference to the right of redemption allowed to such persons; for, as before stated, the confirmation decree does not affect their right to redeem, and it is not necessary to attack the decree in order to redeem. The year the confirmation statute gives after disabilities are removed is to allow them to appear and contest the decree.

To illustrate: If an adult permit his land to be forfeited and sold for nonpayment of taxes, and then dies, his minor children have only two years from the date of the tax sale in which to redeem the land. If they fail to redeem, and the purchaser at the tax sale procures a decree confirming the sale, they have, under this confirmation act, one year after arriving at age to appear and contest the decree, and unless they appear within that time their rights are cut off entirely; for in that case they have no longer time in which to redeem than their ancestor had. On the other hand, if the adult dies before the tax forfeiture, and his minor children are the owners at that time, they have two years after becoming of age in which to redeem, and this right does not depend upon the invalidity of the tax sale, and is not affected by a decree confirming such sale. If in this case the forfeiture of the land 'for nonpayment of taxes had occurred while the owner was sane, he would then have been entitled to only two years in which to redeem. His subsequent insanity would not have extended the time for redemption, and if he had not redeemed the land, and the purchaser at the tax sale had obtained a decree confirming the tax sale after, the owner became insane, then the provision of the confirmation act allowing to minors and insane persons one year, after disabilities are removed in which to appear and contest the decree would have applied. The rights of the owner or his heirs at the expiration of that time would have been cut off; for, their right to redeem having expired, they could only succeed by contesting the decree, and must do that within the time provided by the act, unless the decree was entirely void.

But in this case plaintiff does not contest the tax sale or confirmation decree, for she does not have to do so in order to redeem. Her right to redeem was not affected by the decree confirming the tax sale. For these reasons we are of the opinion that the first paragraph of the answer setting up the confirmation decree as a defense to her action to redeem showed no valid defense to such action, and the court erred in overruling the demurrer to that paragraph.

The chancery court sustained the demurrer to the second paragraph of the answer, and held in efifect that the mere fact that the original forfeiture upon which the donation deed to the son of plaintiff rested was void on account ’of irregularities in the tax procedure leading up to such forfeiture did not necessarily show that plaintiff had no right to redeem. The defendant did not appeal from this ruling; but, as the case must be reversed for error noted above, we will say that, if there was nothing more than a void donation deed, without possession or. payment of taxes under it, that would hardly be sufficient to entitle plaintiff to redeem. But the'land was forfeited and sold to the State for nonpayment of the taxes for the years 1865, 1866 and 1867. It was not redeemed, and the State by its donation deed conveyed it to the son of plaintiff in 1873. If the statements in brief of counsel for plaintiff are true, the son of plaintiff had it assessed in his name and paid taxes on it from that time until 1893, claiming it as his own. As the land'was wild and unoccupied, he did not take actual possession, but the deed from the State was prima facie evidence of title. Although, on. account of irregularities in the tax procedure, this title was subject to be defeated by an action of the true owner, yet the donation deed not only gave him color of title, but the subsequent payment of taxes under this donation deed gave him a lien upon the land for the sums so paid. Bagley v. Castile, 42 Ark. 77. This was such an interest in the land as entitled him to redeem. For, although this title, was defective, it might have been confirmed, as many defective titles of that kind have been confirmed, under the statute passed for that purpose, or the holder of this donation deed might have taken actual possession and acquired title by adverse possession in two years, for the original owner might never have appeared to contest the title.

Now, the same interest which gives the adult a right to redeem within two years after a tax sale will, if held by a minor or insane person, give such minor or insane person the right to redeem within two years after their disabilities are removed, for the statute makes no distinction between the adult and the minor or insane person in that regard. Burton v. Hintrager, 18 Ia. 348.

This court in Woodward v. Campbell, 39 Ark. 580, speaking of the nature of the interest in land required to redeem from a tax sale, said that “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 incumbrance on the land, 'amounts to such an ownership as will entitle the party holding it to redeem;” and this statement of the law has been repeatedly followed and affirmed. Sanders v. Ellis, 42 Ark. 215; Hodges v. Harkleroad, ante, p. 345; Shearer v. Woodburn, 10 Pa. St. 511; Schenck v. Peay, 1 Dill. 267; White v. Smith, 68 la. 313; Swan v. Harvey, 90 N. W. 489.

As the son of plaintiff at the time this land was sold for taxes in 1894 had a deed from the State to this land which, even though it may have been invalid, gave him a lien on the land for all taxes he had paid thereon under the donation deed and the value of all improvements he might choose to make thereon, we are of the opinion that, if he had paid taxes on this land for several years, he had, by virtue'of his donation deed and such payment of taxes, an interest in the land sufficient to entitle him to redeem. Gantt’s Dig. § 3910. But a void donation deed executed under the donation act of 1840, twenty years before the action to redeem was commenced, without possession or payment of taxes since the execution of the deed, would not, in our opinion, be sufficient for that purpose. Gantt’s Dig. §. § 3897* 3898.

Judgment reversed, and cause remanded, with an order to sustain the demurrer to the first paragraph of the answer and for further proceedings, with permission to either party to amend pleadings.