145 Ark. 188 | Ark. | 1920
Lead Opinion
(after stating the facts). The decision of the chancellor was wrong. Appellants and appellees were the children and sole heirs at law of W. B. Sanders, who owned the land in controversy at his death in 1903. The children 'agreed that his widow should have the land during her lifetime. Appellants and appellees were tenants in common of the land.
In Cocks v. Simmons, 55 Ark. 104, it was held that a tenant in common of land can acquire no title to the interest of his cotenants by purchase at a tax sale of the whole for delinquent taxes, and that his purchase amounts to no more than the payment of the taxes, and gives him no right except to demand contribution from his cotenants. The rule is based upon a community of interest in a common title creating such a relation of trust and confidence between the parties that it would be inequitable to permit one of them to do anything to the prejudice of the others in reference to the property.
In application of the rule in the subsequent case of Inman v. Quirey, 128 Ark. 605, it was held that a tenant in common can not add to or strengthen his title by purchasing the title to the entire property from a stranger who has purchased the,premises at a tax sale, as the law will not allow that to be done indirectly which can not legally be accomplished directly. Therefore, W. N. Sanders did not acquire any title to the property by the mere purchase from the State, or from Blocker, who had purchased at the tax sale.
It is true that Sanders went into possession of the land after he acquired the tax title and commenced to pay the taxes thereon. Such possession, however, would be construed as the common possession of all the tenants in common until W. N. Sanders did some act of ouster or notified the others that his possession was exclusive. There' is no proof in the record that "W. N. Sanders openly asserted any exclusive right to the land, or that his son, J. L. Sanders, was a bona fide purchaser of said land from his father.
On the contrary, some of the appellants testified that it was the intention of W. N. Sanders to redeem the land from the tax forfeiture for the benefit of himself and his tenants in common, and that he so informed them at the time he acquired the tax title. There is nothing in the record to show that "W. N. Sanders denied the rights of his tenants in common and claimed the whole property and notified them that he was holding it exclusively for his own benefit.
The record shows that he intended to act for the benefit of all the tenants in common in purchasing the outstanding tax title. Therefore he-stands in a fiduciary or trust relation to the other tenants in common, and the law will hold him to be, not the sole owner of the land, but a tenant in common with the others. In other words, under the facts of this case, the law regards his purchase as being for the common benefit of all and adjudges him to be a tenant in common with appellants.
It follows that the decree will be reversed and the cause will be remanded for further proceedings in ac-. cordance with this opinion, and then for the partition of the land according to the respective interests of the parties.
Rehearing
OPINION ON REHEARING.
In his motion for a rehearing counsel for appellee claims that the court erred in finding the facts to be that Walt N. Sanders redeemed the land from tax sale and did not assert any exclusive right to it. .
We have again examined the record and find that the statement we made was correct. J. H. Ramsey, a brother-in-law of Walt N. Sanders, testified that he told Walt N. Sanders that he thought one of the boys ought to redeem the land in as much as they had been looking after it for their mother. Sanders replied that he had been thinking about it, but did not know. The next time Sanders talked with Ramsey, he told the latter that he had redeemed the land and that it cost him $91 to do it.
Charles F. Sanders, a brother of Walt N. Sanders, testified that the latter told him that he thought he would redeem the land and subsequently told him that he had redeemed it. Walt N. Sanders then asked Charles F. Sanders what he would take for his share in the land.
Other heirs testified that Walt N. Sanders negotiated with them about the purchase of their interest in the land. No denial of this testimony was attempted to be made by Walt N. Sanders, and the record shows that his son must have known what he was doing in the premises. Therefore the testimony was ample to sustain a finding that Walt N. Sanders redeemed the land from tax sale. Hence he could not claim the land by two years’ adverse possession under a tax deed because his tax deed constituted a redemption of the land for himself and the other tenants in common. If subsequently in 1916 Walt N. Sanders, or his son, concluded that they would acquire title to the land by adverse possession, they would have to hold it for seven years, and this they did not do. They could not in 1916 assert any claim of the land by virtue of the tax title and claim title to the land after holding for two years because, as we have already seen, their tax title amounted to nothing more than a redemption of the land.
It follows that the motion for a rehearing will be denied.