47 Ark. 558 | Ark. | 1886
The heirs of Ludovicus Belding, four in number, applied to the Garland county court to refund certain taxes which, it was claimed, had been erroneously paid upon a tract of land, of which they had supposed themselves to be. the owners, but which was afterwards discovered to be the property of the United States. The taxes were paid in the years 1874, 1875 and 1876, the last payment being made April 10, 1876.
The petition alleged that Maria Gaines was at the time the cause of action accrued, and still is, the wife of William H. Gaines.
The county court rejected the claim and the petitioners appealed. In the circuit court the defendant interposed a general demurrer, which was overruled. The answer set up, among other defenses, the statute of limitations. The issues of fact were submitted to the court, a jury being waived, and the finding was, that all of the claimants were barred except Mrs. Gaines. Judgment was therefore given in her favor for the recovery of her share of the taxes paid, being one-fourth of the whole. The county alone appealed.
The general rule is, that in .the absence of a statutory , , enactment, money voluntarily paid for illegal taxes, under 0 mistake of law, but with knowledge of all the facts, cannot be recovered back. However, Sec. 5857, Mansf. Dig., enables the taxpayer to reclaim taxes which he has paid on land that is not taxable. The action is in substance assumpsit for money had and received, and the limitation is three years. Mansf. Dig., sec. 4478. But by act of December 14, 1844, (Mansf. Dig., sec. 4489,) if any person entitled to bring any action, shall, at the time of the accrual of the cause of action, be under twenty-one years of age, or insane, or a married woman, etc., such person shall be at liberty to bring such action within the time limited by law, after such disability may be removed. To prevent the running of the statute, the disability to sue must exist at the accrual of the action.
Now, Mrs. Gaines labored under no disability at the time that any of these payments were made ; for the common law disability of coverture had been removed by the act of April 28, 1873. (Mansf. Dig., secs. 4623-31.)
This act gave her sole and entire control over her property, and authorized her to sue alone or be sued in the courts in respect of her property. t It repealed by implication so much of the act of December 14, 1844, as exempted married women from the operation of the statute of limitations. Mrs. Gaines might have sued, without joining her husband, to recover these taxes on the day after she had paid them. Kibbe v. Ditto, 93 U. S., 674; Castnor v. Walrod, 83 Ill., 172; Brown v. Cousens, 51 Me., 305; Cameron v. Smith, 50 Cal., 303; Pope v. Hooper, 6 Neb., 178; Ball v. Bullard, 52 Barb., 146.
This is the true ground of decision in McGoughy v. Brown, 46 Ark., 25. Mrs. Price, the married woman in that case, was barred of her suit, not only because the five years’ statute, applicable to judicial sales, contained no exemption in favor of married women, for the general saving clause in the subsequent act of 1844 would have protected her, but because-the legislature had removed her disability more than five years before she exhibited her bill. Hershy v. Latham, 42 Ark, 305, stands on the peculiar language of the act of 1851, (Mansf. Dig., sec. 4471,) limiting actions for the recovery of lands. That act gives a married woman three years within which to sue, after she becomes discovert; not after removal of her disability.
Reversed and remanded for further proceedings.