Oliver v. Scott

| Ark. | Mar 1, 1915

Wood, J.,

(after stating the facts). The court erred in finding that the appellant had violated the contract “by his failure to pay the taxes due upon said lots for the year 1911, within the time prescribed by law,” and erred in holding that appellant had forfeited his rights under the contract by reason of such alleged failure.

(1) Under our revenue laws taxes are due and payable at any time from the first Monday in January to and including the 10th day of April in each year, and all taxes remaining unpaid after the 10th day of April are delinquent, but the property is not forfeited to the State for the nonpayment of taxes until the second Monday in June next after the taxes are due and payable. If the taxes are not paid by the 10th of April in each year the party whose duty it is to pay the taxes is assessed a penalty of 10 per cent by reason of his failure to pay on that day, but he can pay the taxes and this penalty at any time before the second Monday in June and thus relieve his property from a forfeiture to the State. Act 415, Acts of 1911, p. 361; Kirby’s Digest, § § 7083 to 7087 inc.

The owner’s right to prevent a forfeiture' of his land for the nonpayment of taxes continues, under our law, until the second M-onday in June. If he fails to pay by that time his land is forfeited to the State and his right to discharge the taxes by payment is lost, and after that time he has a right of redemption which must be obtained under the procedure provided by law. See, 37 Oye. p. 1158; Kirby’s Digest, | § supra, and section 7095.

The contract did not specify any day on which the purchaser or his assignee should pay the taxes. That was left open, and therefore, as we construe the contract, the appellant had not failed to “regularly and seasonably” pay the taxes “lawfully imposed” upon said premises, provided he paid the same, or offered to pay the same, before the time fixed by law when the property should be forfeited to the State in case of a failure to pay the taxes. The contract did not contemplate a forfeiture of appellant’s rights of property under the contract so long as appellant was able and ready to pay the taxes and penalties within the time prescribed by law when such taxes should be paid to prevent a forfeiture to the State.

(2) The court also erred in finding that appellant had forfeited his right under the contract “by his failure to pay the note due and payable on the 12th of May, 1912.”

The facts set forth in the statement show that this note was paid. The notes were held by the Citizens Bank for collection. The appellant notified the cashier of the bank before tbe day wben tbe note became due to pay tbe same out of bis general deposit with tbe bank. At tbe time tbe note was due appellant bad on deposit with tbe bank a sum sufficient to make tbe payment. Tbe cashier of tbe bank was tbe agent of tbe appellees to collect tbe note and was also tbe agent of tbe appellant to appropriate bis funds on deposit with tbe bank to tbe payment of tbe note wben same was due. Tbe cashier of tbe bank, in pursuance of tbe directions of tbe appellant, endorsed tbe note as paid and credited appellees’ account with the amount of the- note. It was tbe duty of tbe cashier baying tbe funds of tbe appellant on deposit and with instructions to appropriate tbe same to the payment of tbe note wben tbe same became due, and with instructions from tbe appellees to collect tbe note wben tbe same became due, to appropriate tbe money of appellant to tbe payment of tbe note on May 12,1912, wben tbe same was due. Although tbe endorsement on tbe note shows that tbe same was paid on May 17, yet equity treats that as done which should have been done, and, under tbe uncontroverted evidence, it is clear that under tbe provisions of tbe contract this note, in contemplation of tbe parties to tbe contract, was paid on May 12,1912, and tbe failure of tbe cashier to make tbe proper entries on bis books and tbe note showing such payment was but ia clerical mistake and did not alter tbe fact of the actual payment of tbe note on tbe day it was due.

Tbe decree of tbe chancellor, for tbe errors indicated, is therefore reversed and tbe cause is remanded with directions to enter a decree for appellant and for further proceedings not inconsistent with this opinion.