Bender v. Bean

• Decision Date: 26 October 1889
• Parties: BENDER et al. v. BEAN et al.
• Court: Arkansas Supreme Court

12 S.W. 241

52 Ark. 132

BENDER et al. v. BEAN et al.

Supreme Court of Arkansas.

October 26, 1889

On motion to modify decree. For former opinion, see ante, 180.

Failure to object to a tender because no money was actually offered is a waiver of that defect.

HEMINGWAY, J.

Upon the hearing of this cause, we held that defendants Haynes and Helms were not chargeable with rents of land purchased by them at tax-sale. The plaintiffs, who prevailed, have filed a motion seeking to modify the decree in this respect, and to charge Haynes and Helms with rents after they offered to redeem and made a tender of the sum necessary. As we said upon the hearing of this cause the minor's right to redeem is a statutory privilege to defeat the purchaser's title within a limited time. The purchaser holds an estate in fee, subject to be defeated by the exercise of the privilege. This the minor may do by making the payment prescribed by the statute, within the statutory period, to the purchaser. Upon such payment the fee of the purchaser is terminated, and the person redeeming becomes seised thereof, with all rights pertaining thereto, including the right to rents. A tender of the amount necessary to redeem is as effective as a payment thereof, and an offer, made in good faith, to redeem, which is refused, not because no tender, or an insufficient tender is made, but because the right to redeem is denied, is equally effective. Any other rule would make a profit for the purchaser from his unlawful denial of a statutory right. A tender of the exact amount necessary, under a statute which exacts payment for improvements, would in many cases be impracticable. If the purchaser could decline it, without making a showing as to the correct amount, and still enjoy the rents and profits of the land, redemption by minors would be difficult and tedious. In all cases where the rents and profits for a few years exceeded the cost of litigation redemption would be allowed only at the end of vexatious suits. When the former owner, who is entitled, desires, and in good faith attempts, to redeem, the tax purchaser should offer no obstacles to his doing so. If the sum offered is inadequate, the inadequacy should be objected to, and the correct amount indicated. It will not do to maintain silence as to objections, which, if expressed, might be met, and afterwards assert them to the owner's prejudice.

The plaintiffs made a tender before bringing the suit, but it was joined with a tender from another party, who was not entitled to redeem. This was not a good tender. In the bill filed they set out their respective interests, and ask to be allowed to redeem as provided by law. This implied an offer to pay the amounts which the law allowed to each of the tax purchasers. It was met by no objection to its terms, or to the fact that no money was actually tendered, but by a denial of the right to redeem, and by the assertion of a title adverse to the plaintiffs. They desired to redeem, and sought to terminate the estate of the tax purchasers, which they had a right to do. The purchasers could not, by their improper refusal of the privilege sought, extend the term of their estate, and continue to enjoy its rents and profits. The decree will be modified, and Haynes and Helms will be charged with rents from the date of the institution of the suit.

SANDELS J., (dissenting.)

I do not assent to ...