Hodges v. Harkleroad
85 S.W. 779
Ark.
1905
Check Treatment
HiEE, C. J.,

(after stating the facts.) 1. The attack on the validity of the tax forfeitures and sales was abandoned in the chancery court, and is not insisted upon here, and the case was tried and determined upon the alternative prayer of the complainant, for redemption of the land from the tax sales. This.eliminates the defense interposed and insisted upon here that the suit could not be maintained without the affidavit of tender of taxes and value of improvements required by sections 2759, 2760. Kirby’s Digest. In Burgett v. McCray, 61 Ark. 456, it was held that such affidavit was not required in suits to redeem from- tax sales occurring during the infancy of the plaintiff.

2.' The various statutes of limitations are not applicable; the suit was brought within two years of the plaintiff reaching his majority. Section 7095, Kirby’s Digest, gives minors two years after reaching majority to redeem lands sold during their minority for taxes. This right is a privilege to flefeat the tax title 1 by its assertion at any time within two years after reaching majority, and it can be asserted against the State, its vendees, and subsequent purchasers of the vendees. Carroll v. Johnson, 41 Ark. 59; Bender v. Bean, 52 Ark. 132; Burgett v. McCray, 61 Ark. 456; Moore v. Irby, 69 Ark. 102.

3. It is urged that at the time of the tax forfeiture and sales the laws did not authorize redemption by minors from the sale, and that the subsequent statutes do not apply. The privilege of redemption was extended to minors by the revenue act of 1873, and has remained unchanged. Bender v. Bean, 52 Ark. 132; Carroll v. Johnson, 41 Ark. 59'. In these two cases the forfeitures were for the year 1876, and the deeds from the State in 1879, exactly as in the case at bar.

4. It is insisted that Daniel‘S. Harkleroad was not the owner of the land, in the purview of the statute, at the time of the forfeiture to the State and the sale by the State to Peters. At the time of the forfeiture and subsequent thereto -said Harkleroad owned the fee of the lands subject to the life interest of his father, and subject to a reduction of his interest by the birth of other children to his father, who might be living, or their descendants, at the time of the father’s death. His interest was a vested remainder, subject to a contingency by which the entire interest might be reduced to a moiety. It ripened into a fee simple title at his father’s death in 1886. In Woodward v. Campbell, 39 Ark. 580, 584, and Sanders v. Hill, 42 Ark. 215,'it was held “that almost any right, either in law or equity, perfect or inchoate, in possession or in action, or whether in the nature of a charge or incumbrance on land, amounts to such an ownership as will entitle the party holding it to redeem.” This is the general rule on the subject. 2 Blackwell, Tax Titles, § 705. Mr. Blackwell says: “In construing the redemption laws, the courts hold that the word ‘owner’ is a generic term, which embraces the ‘different species of interest which may be carved out of a fee simple estate.” 2 Blackwell, Tax Titles, § 705. In Sims v. Cumby, 53 Ark. 418, it was held that the remaindermen, whether their interest was vested or contingent, had a right to redeem.

5. It is insisted that the suit could not be maintained without a previous 'tender of the amount necessary. In Carroll v. Johnson, 41 Ark. 59, this was held the approved practice; but in Bender v. Bean, 52 Ark. 132, it was held that the right to redeem, when the bill offered to pay the amount ascertained, could not be defeated when it was met with a denial of the right of redemption, instead of a mere objection for failure to tender. Had the only defense here been the failure to tender'the proper amount, or any amount, thereby putting the defendants to unnecessary costs where the redemption money would have been accepted, then this question would have been important, at least as to the costs. In this case, however, there was an allegation of the necessity .of an accounting in chancery to ascertain the amount. This was denied, but in the final deciee it was stated that this amount is unknown; and that question, having by agreement of counsel been reserved, was submitted to a master. Doubtless, it was such a matter as would be .difficult to reach, as pointed out in Bender v. Bean, and would likely require evidence to ascertain the value of improvements, and consequently a tender of the proper amount could not be made until that was ascertained, as well as the amount due for taxes.

6. A question is raised as to charging the defendants with rents. The decree does not indicate what rents are to be charged against them. If rents during the time they have held under the tax titles, and before the plaintiff attempted to defeat those titles by redemption, then it is contrary to the rule announced in Bender v. Bean, 52 Ark. 132; if subsequent to his attempted redemption, the decree is right; and, in the absence of a contrary showing, the presumptions are in favor of the decree.

The decree is affirmed.