Herrin v. Henry , 75 Ark. 273 ( 1905 )

Hiel, C. J.,

(after stating the facts.) Mr. Henry was insolvent in 1894, and in possession of the land in controversy, and receiving rent therefor, and allowed the taxes to go delinquent. At the tax sale, acting as agent for his wife, he purchased the land for Mrs. Henry with separate funds of hers, but which she held at all times subject to his uses and wants; in other words, this fund was in a common purse between husband and wife. To enable an insolvent husband to permit his lands to be transferred to his wife through the medium of a tax sale is not less a .fraud upon the rights of his creditors than to transfer it directly for the same consideration which the tax purchase cost. Had Mrs. Henry bought for $5.60 this tract of land, producing upwards of $100 annual rent, of her husband, then no question could have been raised that it was fraudulent as to creditors. By indirection the same results are reached, and the same consequences must follow. That Mr. Henry purposely permitted the lands to go delinquent is evident; but, even if his necessities had taken his rent money, and the land went delinquent through misfortune, the result would work out the same. Mrs. Henry says her husband used what he wanted of this money, and such as she gave him she considered his. With this common fund he could have carried the burden of the tax paying and redeemed the land on the day he purchased for his wife; but, instead of doing this, as agent of his wife, he buys for her his own land thus offered for sale on account of his default. In this way and for this nominal consideration it is withdrawn from his creditors. The duty rested on him to pay the taxes; and when such is the case, a payment by the wife will be treated as his payment. She cannot take advantage of his default to gain an advantage over his creditors. It is argued that the separate estates of married women permit them to buy as strangers at such sales, but the law forbids one spouse from obtaining a title when the other is disqualified to act. This rule does not rest on a privity of estate between them, but upon public policy requiring that facts preventing one from acquiring title prevent the other, and thereby “close the door that offers temptation” to fraudulent practices. Robinson v. Lewis, 68 Miss. 69.

The rule seems thoroughly settled that a husband or wife cannot obtain a tax title when the other is disabled from obtaining it, or in opposition to the other when they are in joint possession. Laton v. Balcom, 64 N. H. 92; Robinson v. Lewis, 68 Miss. 69; Burns v. Byrne, 45 Iowa, 285; Warner v. Broquet, 54 Kan. 649; Ward v. Nestell, 113 Mich. 185.

In this case the attempted purchase at tax sale by Mrs. Henry must be treated as if done by Mr. Henry, and it amounted to a redemption of the land from his delinquency.

The case is reversed, and the cause remanded with directions to subject the land to the payment of the debts of Mr. Henry, subject to the dower rights of Mrs. Plenry.