43 Ark. 521 | Ark. | 1884
On 18th day oí April, A. D. 1876, the appellee filed his complaint in equity, against Mrs. S. W. Woodall, Bythena E. WoodJl, Arthur B. Woodall, and Mary E. Woodall, minors, and D. E. Holland, as guardian for Bythena, Arthur B. and Mary E. Woodall, and on the same day summons, was issued, directed to the sheriff, and returned served.
The complaint alleges and sets forth that the plaintiff, as agent for the defendants, on the 16th day of April, 1874, paid the taxes assessed on certain land therein described, amounting to the sum of three hundred and twenty-eight dollars and eighty cents, and also the sum of twenty-six dollars and forty-four cents, assessed as a personal tax, making a total of taxes paid at the request ol said defendants, three hundred and fifty dollars and forty-seven cents.
He filed with his complaint the receipts of the collector for the amounts, whereupon he prayed judgment for said sums, with a reasonable commission for attending to said payment and advances. That the same be charged as a lien upon the lands therein described, and that in default of payment, by a day to be fixed by the court, that the lands be sold, &c.
There was no defence interposed by any of the defendants^ nor by their guardians, and at the .May term, 1876, judgment by default was entered in favor of the plaintiff, for the sum of four hundred and sixty-two dollars and eighty-five cents, with interest and cost of suit, and it was ordered and decreed that if said amount was not paid on or before the 20th of June, 1876, that the lands therein described be sold to satisfy the same.
It was error to hold that there was a lien upon the real estate for taxes paid on the personal property.
Lien oi agent for lax«s re-The lien sought to be enforced derived its validity from ® ^ section 5233, Gantt’s Digest, which declares that: “ Every agent, guardian, executor, or administrator seized or having the care of lands, who shall be put to any trouble or expense in listing or paying taxes on such lands, shall be allowed a reasonable compensation for the time spent, the expense incurred and money advanced, which shall be deemed in all courts a just charge against the person for whose benefit the sum shall have been advanced, and the same shall be preferred to all other debts or claims, and be a lien on the estate, both real and personal, of the person for whose benefit the same shall have been advanced.”
This is not sufficient, the additional averment to create a lien was necessary, either that he was seized of the lands or had the care of them.
. It might be inferred from the papers that the infants had a regular guardian, and that he had been served with process. His default could not prejudice his wards — it was the duty of the court, as he failed to appear, to appoint a guardian ad litem, and direct him to make a defence for them. Until that was done the court could not proceed in the cause.
It has been the uniform rule of this court to insist upon a strict construction of law for the protection of infant litigants. And in future, as in the past, the rule will be adhered to with the utmost rigor.
For the error above referred to, this cause must be reversed.