George v. Hefley , 182 Ark. 678 ( 1930 )

STATEMENT OF FACTS.

John B. Hefley brought this suit in equity against J. H. George to cancel a clerk's tax deed issued to the defendant, as a cloud on his title, and to quiet his title to eighty acres of land described in the complaint. The defendant set up facts under which he asked that the complaint be dismissed for want of equity.

The record shows that John B. Hefley died intestate in February, 1900, in Perry County, Arkansas, owning the eighty acres of land in question, which are situated in that county. He left surviving him John B. Hefley, his only child and sole heir at law. The child was born in March, 1900, about a month after his father's death, and his grandfather paid the taxes on the land up to and including the year 1910. The land was returned delinquent for the taxes of 1911, and was sold for the nonpayment of taxes on June 10, 1912. J. H. George became the purchaser at the tax sale; and the lands, not having been redeemed within the two years provided by law, a clerk's tax deed was issued to him on April 16, 1915. The defendant paid the taxes on the land from that time until the year 1920. The appellee, who was still a minor, redeemed said land on the 13th day of May, 1920, by paying to the clerk of Perry County the amount of taxes, cost and penalties thereon. The redemption certificate was issued to him by the county clerk. Since that time the taxes have been paid some years by the plaintiff and others by the defendant. The record shows that the defendant has paid out the sum of $30.53 for taxes on said lands subsequent to said redemption. By agreement of counsel for the parties, the defendant is subrogated to the rights of the State to have a lien fixed against said lands for the sum of $40, which includes interest to the date of the decree.

It was decreed that the clerk's tax deed issued to the defendant should be canceled and set aside, and that the plaintiff's title to the land should be fully confirmed as against the defendant. Judgment was also rendered in rem against the land for the sum of $40, and the accrued interest, which was declared to be a lien upon the land. The decree made provision for the enforcement of the lien in case it was not satisfied within the time provided for in the decree. The defendant has appealed. (after stating the facts). Counsel for appellant contend that the redemption by the minor of the land from tax sale in 1920 was unauthorized, and that the court erred in allowing minor to redeem. It is their contention that the minor could not redeem under the statute until after he became of age. We do not agree with counsel in this contention. In the case of Carroll v. Johnson, 41 Ark. 59, it was held that a minor can redeem his land from tax sale at any time during his minority and for two years afterwards, whether the purchase be by the State or by an individual. The court said that a purchaser at a tax sale takes a defeasible title, and that, if the land belonged to a minor, it is subject to redemption at any time during his minority and for two years after he attains his majority. The court had under consideration 5197 of Gantt's Digest, which contains a saving clause that minors and other persons mentioned in the statute may redeem from a tax sale at any time within two years from and after the expiration of such disability.

Counsel for the appellant insist that the holding in this case does not apply because the redemption in the present case falls under 10096 of Crawford Moses' Digest, which was passed by the Legislature of 1883. It will be noted that this section contains a saving clause in favor of minors and other persons and provides that, where their lands have been sold for taxes, they may be redeemed within two years from and after the expiration of such disability. The court has frequently construed this statute to give minors the right to redeem from and after the sale until the expiration of two years after they have reached their majority. The court has said that the minor's right to redeem commences from and after the sale, and that the right to redeem continues until two years after he should come of age. Bender v. Bean, 52 Ark. 132, 12 S.W. 241; Seger v. Spurlock, 59 Ark. 147, 26 S.W. 819; Moore v. Irby, 69 Ark. 102, 61 S.W. 371; and Crowley v. Spradlin,77 Ark. 190, 91 S.W. 550.

Later decisions of the court have recognized that the statute does not suspend the right of redemption during the minority of the owner, but that it may be exercised as well before as after the removal of the disability of minority. Hisey v. Sloan, 180 Ark. 797,22 S.W.2d 1005, and cases cited.

It is also insisted that the right of the minor to redeem may only be exercised by suit brought in the chancery court. We do not agree with counsel in this contention. The statutory right to redeem from tax sales is self-executing and requires no judicial proceedings to make it effective. It may be exercised in the manner pointed out by statute as a matter of right by the owner of the property, and it is available in all cases, not only where the sale was defective, but where it was perfectly regular and valid. The right of redemption is given by the statute, and it is intended to afford the owner the opportunity to save his property from a tax sale by complying with the provisions of the statute relating to his right to redeem. Bender v. Bean, 52 Ark. 132,12 S.W. 180, 241; Cook v. Jones, 80 Ark. 43,96 S.W. 620; and Nelson v. Peirce, 119 Ark. 291,177 S.W. 899.

It follows that the decree of the chancery court was correct, and it will be affirmed.