169 S.W.2d 586 | Ark. | 1943
Lead Opinion
Appellee, as curator of the estates of Billie Jean Collins and Howard Glenn Collins, minors, by his suit in the lower court, sought to effect redemption of an eighty-acre tract and a forty-acre tract, in which his wards owned an undivided thirteen one hundred and twenty-sixth interest, the remaining shares being owned by certain adults. These lands, delinquent for taxes of 1932, were sold by the collector to the state, and in 1936 the title of the state thereto was confirmed by proceeding in chancery court. On the 19th day of June, 1941, appellant, Sullivan, purchased the eighty-acre tract from the state, and on the 15th day of October, 1941, appellant, Smith, purchased the forty-acre tract. The complaint in this case was filed on October 31, 1941. Appellants, in their answer, conceded the right of appellee to redeem the shares in the land owned by his wards, but denied his right to redeem the interests therein owned by the adults. The lower court decreed that appellee was entitled to redeem the lands for the benefit of all who were owners as co-tenants at the time of the forfeiture, on paying into the registry of *444 the court, for the use and benefit of appellants, the sum of $112.22, which the court found to be the amount due for taxes, penalty, and interest.
It is first urged by appellants that redemption of this land by the curator of the minor appellees could not be effected without the adult co-owners being made parties to the suit. The allegations of appellee's complaint as to the ownership of the laid, at the time of the forfeiture, are conceded by appellant to be correct, and, since all that appellants would in any event be entitled to under the decree, if these adult co-tenants had been made parties, would be the amount payable to them for taxes, penalty and interest, and this they have been awarded under the decree as rendered, appellants' rights were not prejudiced by the failure to make the adult owners of the land parties to the redemption proceeding. Furthermore, appellants did not, in the lower court, ask that these adults heirs be made parties and they are, therefore, not in a position to raise this question for the first time on appeal.
It is next contended by appellants that the lower court erred in permitting appellee to redeem that interest in the land owned by the adult tenants in common, because the land did not constitute a homestead, and they urge that only in case of the sale of a homestead for taxes may a minor tenant in common redeem the entire interest in the land. It has been uniformly held by this court that where land constituting a homestead was sold for taxes a minor co-tenant might redeem not only his interest but the entire interest in the land. Seger v. Spurlock,
In the case of Reynolds v. Plants,
The rule laid down in these cases is clearly controlling in the case at bar, and we do not find that there is any conflict between that rule and the provisions of 13867 of Pope's Digest, which permits a tenant in common to redeem his share of land forfeited for taxes where his co-tenants refuse or neglect to join him in redeeming same. The effect of this statute is simply to relieve the tenant in common of the necessity of redeeming for his co-tenants unless he desires so to do. In the absence of such a statute, as was pointed out by Mr. Cooley, in the above excerpt from his work on Taxation, it would appear that a co-tenant would be compelled to redeem for all, in order to effect a redemption of his share.
It is finally urged by appellants that the lower court erred in computing the amount required to be paid in order to effect a redemption in that interest was calculated on the taxes for 1932 and 1933 at the rate of ten per cent. and on subsequent tax payments at the rate of only six per cent. The decree simply fixes the amount which the appellee was required to pay in order to accomplish the redemption, and does not set forth the manner in which the court arrived at the figures stated in the decree.
While the decree recites that the testimony of certain witnesses was heard by the court, none of the evidence heard is brought into the record on this appeal. Under the rule long adhered to by this court, where it appears that, on appeal from chancery court, the lower court heard testimony not brought into the record, it must be conclusively presumed that the sum determined by the court as necessary to be paid in order to effect *447
the redemption was the correct amount. Hershy v. Berman,
No prejudicial error appearing, the decree of the lower court is affirmed.
Dissenting Opinion
I think the rule applied in Parker v. Dendy,
Here there was a tax sale and deed to the state and a confirmation thereof which barred the rights of the adults. The state sold to the appellants. There is no reason why the rule as to redemption from mortgages should not be applied here. Whether it should be applied where the tax title is still in the state need not be decided until such a case arises. Certainly the objection that the state cannot, or ought not, be made a co-tenant does not apply where the state has no interest.
The decision in this case again ruins any chance that tax titles can be made merchantable. Many cases in the reports reflect what title attorneys know from experience — that it is frequently impossible to learn of the existence of all the heirs. When it is possible to be sure that all the title except a small fraction has been obtained, purchasers and users of lands can afford to develop same and be reasonably certain they are not taking too *448 great a risk. Under the rule adopted here, no one can afford to develop and place in use any tax title land within any reasonable time after purchasing same.
The decree in this case is further erroneous in this: The other co-tenants are not parties. The decree directs "that each of said co-tenants shall contribute his or her proportionate part of the cost of redemption." This is void as to persons not parties to the suit. I know of no authority for any court to authorize the use of a minor's funds to redeem land for co-tenants and to take a chance, no matter on what security, of getting the money back. Where the co-tenants are not parties and have not placed in the hands of the court their share of the money, the redemption should be confined to the interest of the minors.