52 Ark. 132 | Ark. | 1889
Lead Opinion
The complaint in this cause was filed for the purpose of effecting a redemption of the lands described therein from tax sales. It alleged that the plaintiffs, Julia and Adelia Bender, Sallie Morris and Maggie Vanlandingham, together with Walter and David Bender and Agnes Douglas, were tenants in common and owners of the lands when they were forfeited for the non-payment of taxes ; that the four-first named were the minor children and heirs of Samuel Bender, deceased, who died seized of the lands, and that the others were the heirs-at-law of Agnes Douglas, who was daughter to Samuel Bender and who died after the forfeitures that each of the defendants, Bean, Helms and Haynes held part of the lands by virtue of donation deeds from the State, executed in pursuance of forfeitures for the non-payment of taxes ; that they had made a tender to each of the amount required by law to redeem, and that the tenders had been refused.
The prayer was for an account of rents and for the enforcement of their right to redeem. Haynes and Helms filed a joint answer admitting that they held under donation deeds, but denying that the plaintiffs were ever the owners of the lands, and alleged that they had paid taxes and put valuable-improvements upon them.
Bean denied that he held under a tax deed; admitted that the lands in question had once belonged to Samuel Bender,, the plaintiff’s ancestor, and that he had died seized and possessed thereof, but alleged that the administrator of his estate,, acting under authority of the Probate Court of his appointment, conveyed the same to one David Bender before the forfeiture mentioned in the complaint, and that he had succeeded to David Bender’s title through certain mesne conveyances ; he pleaded the seven-year statute of limitations; alleged that the tax titles of Haynes and Helms were irregular and void ; ■made his answer a cross-complaint against them and the plaintiffs aud prayed that his title be quieted against the claims of title of all the parties.
Proof was taken and the court heard the cause without objection from any source as to multifariousness or misjoinder of parties, and decreed that Bean had no title except as against the Douglass heirs; that the minor children of Samuel Bender were entitled to recover four-sevenths of the lands which he held; that they were entitled to redeem the same proportion of the lands held by Haynes and Plelms, on paying the excess of the amount of taxes paid, and the value of improvements made by the tax-purchasei's over the value of the rents enjoyed by them, and dismissed the complaint as to the heirs of Agnes Douglass. The plaintiffs appealed, and -afterwards cross-appeals were allowed here in favor of each of the other parties.
Bean argues that he succeeded to the title of Samuel Ben■der, by virtue of the administrator’s deed, and that the decree granting the plaintiffs relief against him is wrong for that reason. Haynes and Helms also argue that the administratox-’s deed divested the title of the plaintiffs before the foi'feiture, -and left them without interest to redeem ; and say if they are •mistaken in that, that the court erred in refusing to allow them ■credit for the full amount of their tax expenses and the value •of the improvements, without diminution for rents enjoyed .by them.
The successful plaintiffs complain because they are required to pay for any part of the improvements, and the other plaintiffs appeal because no relief was granted them.
The facts in relation to the execution of the deed by Bender’s administratior, are as follows. In i860 Samuel Bender purchased the lands in dispute from David Bender, who, as all the parties admit, was then the owner in fee, making a cash payment and giving his notes for $2000 for the deferred payments ®f the purchase money. A lien was retained in the deed as security for the payment of the unpaid purchase money. Samuel Bender died in January, 1869. In March of the same year, Walter Bender was appointed administrator of his estate, and' in August, 1871, presented his petition to the Probate Court, of his appointment, alleging that the notes for the purchase-money were unpaid, and that the lands were worth less than the principal and interest due on them; that the estate was insolvent, and that he was unable to discharge the notes if" it was to the interest of the estate to do so; and prayed that authority be granted him to relinquish to David Bender all the interest of the estate in the lands, upon condition that he would surrender the purchase money notes to the petitioner.
The order of the Probate Court in this connection is as-follows : “Upon examination it is considered and ordered by the court that the prayer of said petition be granted, and, he (the administrator) is hereby authorized to make said relinquishment.”
The records of the administration of the estate of Samuel Bender were put in evidence, and it nowhere appears that the claim of David Bender against the estate of Samuel, was ever allowed by the court or presented to the administrator. In June, 1872, the accounts of Bender’s administrator were examined and approved, and the administrator was discharged. In October, 1874, a deed of relinquishment was executed by Walter Bender, purporting to act as administrator of the estate of Samuel Bender, deceased, to David Bender, to carry out the order of August, 1871, in reference to the settlement of the purchase-money notes. The deed was acknowledged by Walter Bender before the Probate Court, and was spread at. large upon the record ; no order in reference to the matter - was made by the Court. David Bender appeared at the time ■ the deed was acknowledged, and surrendered the "purchase-money notes. No other action was had in the matter of the ■ estate after the discharge of Walter Bender as administrator in,. 1873. The lands were assessed for taxation in the name of David Bender after 1874. He conveyed them to one Allen, and Allen to the defendant, Bean. Bean and those through whom he claimed title, had been in the adverse possession for more than seven years when the suit was instituted.
In 1873 the Legislature enacted that all sales previously made in pursuance of the “Chapters of the Digest” should be binding {Acts of 1873, p. 13), but this act could add nothing to the validity of the order.of August, 1871, because it was not in itself a sale, but purported only to confer authority upon the administrator to sell, and the power had not been executed when the healing act was passed. If the order rested upon the supposed authority of the “Chapters o.f the Digest,” it was a nullity, and no rights could be acquired under it.
The plaintiff’s suit to redeem was an affirmance of the validity of the tax titles and an election to defeat them by complying with the law governing such cases. It is true allegations of irregularities in the tax proceedings were made in the complaint, but the proof does not sustain them.
The court erred, therefore, in charging Haynes and Helms with rents. As to them the decree will be reversed and the cause remanded with instructions to enter a decree in accordance with the opinion.
Otherwise the decree is affirmed.
SUPPLEMENTAL OPINION ON MOTION TO MODIFY DECREE AS TO RENTS.
Hemingway, J. Upon the hearing of this cause, we held that defendants Haynes and Helms were not chargeable with rents of land purchased by them at tax sale.
The plaintiffs, who prevailed, have filed a motion seeking to' modify the decree in this respect, and to charge Haynes and Helms with rents after they offered to redeem and made a tender of the sum necessary.
A tender of the amount necessary to redeem is as effective as a payment thereof; and an offer, made in good faith, to redeem, which is refused, not because no tender, or an insufficient tender, is made, but because the right to redeem is denied, is equally effective.
Any other rule would make a profit for the purchaser, from his unlawful denial of a statutory right.
A tender of the exact amount necessary, under a statute which exacts payment for improvements, would in many cases be impracticable If the purchaser could decline it without making a showing as to the correct amount, and still enjoy the rents and profits of the land, redemption by minors would be difficult and tedious. In all cases where the rents and profits for a few years exceeded the cost of litigation, redemption would be allowed only at the end of vexatious suits. When the former owner, who is entitled, desires, and in good faith attempts, to redeem, the tax-purchaser should offer no obstacles to his doing so. If the sum offered is inadequate, the inadequacy should be objected to, and the correct amount indicated. It will not do to maintain silence as to objections, which if expressed, might be met, and afterwards assert them to the owner’s prejudice.
The plaintiffs made a tender before bringing the suit, but it was joined with a tender from another party who was not entitled to redeem. This was not a good tender.
The decree will be modified, and Haynes and Helms will be charged with rents from the date of the institution of the suit.
Dissenting Opinion
Dissenting Opinion by
On motion to modify decree.
I do not assent to the conclusion of the court upon the motion of plaintiffs below to award them the rents of the lands in controversy, since the filing of their bill. I do not think they ' are entitled to rents until after the decree of the court has adjudged them entitled to redeem, and they have paid the sums adjudged against them.
So much of the record as is necessary to a proper understanding of my position, is as follows:
There were seven heirs of Bender. Two were confessedly barred of their right to redeem. Five of them claimed the right, and sent their attorney to Haynes and Helms to effect the redemption. He offered to each of them (Haynes and Helms) $100 to cover taxes, penalty, costs, etc, on behalf of the “ Bender heirs.” Each refused to accept the sum tendered without assigning any reason for the refusal.
Five of the Bender heirs, soon after, filed their bill to redeem, and, after alleging the tender of $100 to each of the defendants, offered to pay such sums as the court might adjudge against them for the redemption of five-sevenths of the land. By the consideration of this court it was determined that one of the five plaintiffs was not entitled to redeem, and that only four-sevenths of the land was redeemable. It was determined, also, that the sum due to Haynes was $ , and to Helms $ . The sum tendered before the filing of the bill was for the redemption of more land than they were entitled to redeem, and was insufficient to pay for the redemption of that to which they were entitled. It is conceded by the court that this tender was ineffectual for any purpose. It is decided, however, that by the subsequent filing of the bill by five heirs .claiming five-sevenths of the land, and offering to pay such sums as the court might adjudge; and, also, by the filing of the answer denying the right of these plaintiffs to redeem; but insisting that if they were so entitled, the sum tendered them was inadequate, the right of plaintiffs to the rents accrued.
For a long time the right to maintain a bill to redeem without a previous sufficient tender was denied, except when the fraud of the tax-purchaser or officer had presented redemption within the proper time, or when the bill presented other features that brought the case within some distinct head of equity jurisprudence. But the last, as also the greatest innovation, in favor of liberal dealing with delinquent tax-payers, is that they may preserve their right of redemption, by filing a bill without tender at all, where it is difficult to tell what exact sum should be tendered. This saves the right to redeem when the bil offers to pay such sums as are adjudged. But I maintain that the right to redeem does not necessarily carry with it the right to rents. The right to rents depends upon the ownership of the lands.
In cases of redemption, by persons generally, within two years from the sale, the tax-purchaser has only an inchoate right to the land, and is not entitled to possession. He is a trespasser if he takes it. He gets title upon the execution of a deed to him at the expiration of two years. This title is unqualified, except in cases where the delinquent tax-payer is a minor. In that event the tax-purchaser takes the title subject to divestiture by the exercise of the minor’s right of redemption within the statutory period.
From the time of the execution of the tax deed, then, the tax-purchaser’s title is indefeasible except upon the contingencies above stated: the minor paying or tendering the full amount of taxes, penalty, costs, etc. If the sum be tendered before, or at the filing of the bill, the minor upon recovery in the action is entitled to the rents and profits from the time a sufficient tender was made and refused. Why? Because the payment, or the tender, of the full sum due the tax-purchaser operated to divest his title, and from that time he holds wrongfully the plaintiff's land.
But in case the plaintiff offers, generally, to do what the court may adjudge proper, there is no divestiture of the title of the tax-purchaser until the court adjudges the plaintiff’s right to redeem, fixes the amount of plaintiff’s liability, and the plaintiff pays it. The plaintiff may never pay it, in which case there would never be a divestiture. Until such adjudication and payment, the land remains the property of the tax-purchaser, and he is not chargeable with rents for living on his own place.