66 Ark. 141 | Ark. | 1899
(after stating the facts.) The allegation of the answer that plaintiff did not buy said lands in good faith was not sustained by the proof. The proof tended to show that plaintiff had been in possession of the lands under his tax deeds continuously and adversely for more than two years before the filing of the answer and cross-complaint of the defendants. The allegations of the cross-complaint and the answer thereto show clearly that, considering defendants in the light of cross-complainants, this was a suit by them for the possession or recovery of the lands in controversy. The court therefore did not err in holding that cross-complainants were not entitled to recover, notwithstanding the invalidity of the tax deeds under which the plaintiff claimed. The two years’ possession under said deeds gave plaintiff the title, unless the defendants had the right to redeem. Cooper v. Lee, 59 Ark. 450; Woolfork v. Buckner, 60 Ark. 163; Finley v. Hogan, 60 Ark. 499.
Did defendants below have the right to redeem? They assert such right as purchasers under the mortgage foreclosure, by which they claim to have succeeded to the rights of the minor heirs to redeem from the tax sale.
The title which the purchasers acquired at the sale under the mortgage foreclosure was in exclusion of the minors, and in spite of them. The title thus acquired was not from nor under the minors at all. The foreclosure proceedings as to the minors was in invitum. They did not voluntarily part with any interest that they might have had in the land. They had no interest in fact, except an equity of redemption, for their father had conveyed same by mortgage. The purchasers at the mortgage sale succeeded to all the rights of the mortgagor. The title they acquired was only such title as the mortgagor had at the time of the execution of the mortgage. The mortgagor himself, had he been living, could not have redeemed from the tax sale after two years. Neither could the defendants, who succeeded to the rights and title he had at the time the mortgage was executed.
This court in Neil v. Rozier, 49 Ark. 551, held that the right of i’edemption, under § 5772, Mansf. Dig. (§ 6615, Sand. So H. Dig.), is not personal to the minor, but may be enforced by his vendee. But, as explained by this court in Bender v. Bean, such conclusion was reached only by virtue of the statutory recognition of the minor’s vendee; otherwise, it .would have been held that the privilege was strictly personal. Bender v. Bean, 52 Ark. 145. The right to redeem is not an estate in the lands, but only a statutory privilege to defeat the tax purchaser’s title within a limited time. It passes to the vendee of the minor, but it can be exercised only by one to whom the minor has voluntarily transferred his interest, and not by one who has acquired the estate in opposition to the minor. Only the benefit to accrue to the minor was in the mind of the legislature when it passed the act.
The court finds, and the evidence shows, that the defendants, cross-complainants below, paid the taxes on the lands in controversy for the years 1890 to 1895, inclusive. Cross-complainants are therefore entitled to a judgment for these taxes, and to have same declared a lien upon the land.
Reversed and remanded, with directions to proceed in accord with this opinion.