Hodges v. Harkleroad

• Decision Date: 25 February 1905
• Citation: 85 S.W. 779
• Parties: HODGES et al. v. HARKLEROAD et al.
• Court: Arkansas Supreme Court

85 S.W. 779

HODGES et al. v. HARKLEROAD et al.

Supreme Court of Arkansas.

February 25, 1905.

Appeal from Crittenden Chancery Court; Edward D. Robertson, Chancellor.

Suit by Daniel S. Harkleroad, revived in the name of his heirs at law after his death, against J. F. Hodges and others. From a decree for plaintiffs, defendants appeal. Affirmed.

In 1872 J. C. W. M. Harkleroad died, leaving a will, the substance of which, so far as it affects this case, was: The real estate in question was devised to his brother, Hiram S. Harkleroad, for his natural life. At the death of Hiram S. Harkleroad it was devised "to the lawful child or children or their descendants who may be living, if there should be such, of him, the said Hiram S. Harkleroad, in fee simple, to be divided among them as though they were taking the same by inheritance from Hiram S. Harkleroad under the laws of Arkansas." Daniel S. Harkleroad was the only child of Hiram S. Harkleroad, and he was born on the 25th of December, 1875, and consequently reached his majority on the 25th of December, 1896. Hiram S. Harkleroad died on the 5th day of January, 1886. The lands in question were forfeited to the state for the taxes of 1876, and the state conveyed the same to George B. Peters, who purchased from the state, in 1879. Peters went into immediate possession of the land under his purchase, and it has ever since been held by him and his successors in title. On the 23d of December, 1898, Daniel S. Harkleroad filed suit in Crittenden chancery court against the then owners of the Peters title, the appellants herein. The object of the suit was to declare the tax forfeitures and sales to the state void, and cancel the deeds to Peters, and the mesne conveyances from Peters to the parties in possession, or, should the tax sales and forfeitures not be void, then that plaintiff, Harkleroad, be decreed entitled to redeem the land from the sales, and that an account be taken and stated of the amount necessary to redeem. It was alleged that, owing to the great length of time elapsing since the forfeitures and sales for taxes, the account was a matter of great complication, and that it was necessary to come into the chancery court to have the amount fixed which was necessary to be paid to redeem the land. The prayer was that the tax sales and forfeitures be declared void and clouds on plaintiff's title, and that they be canceled, or, should they not be void, that it be decreed that plaintiff be entitled to redeem the land; that an account be stated of the amount necessary to redeem, and, upon plaintiff paying the amount, that the tax sales be canceled, and the plaintiff declared the owner of the land; and other appropriate relief. The defendants took issue upon each material averment of the complaint; alleged title in themselves; denied it in Harkleroad; denied his right of redemption, or that the accounts were complicated, needing an adjustment in chancery; asserted a failure to make affidavit of tender of amount of taxes and value of improvement, and that no tender had been made nor information requested of the amount of such expenditures. It was admitted that the affidavit of tender was not made, and there is no evidence of the condition of the account. The defendants pleaded laches, the ten-year statute of limitations, and the five-year and the seven-year statute of limitations, in addition to the other defenses mentioned. The plaintiff died during the pendency of the action, and it was revived in the name of his heirs at law, the appellees herein. The court decreed that the heirs at law of Harkleroad were the owners of the land in controversy, and that they were entitled to redeem it, and canceled the deeds to the land held by the defendants, and appointed a commissioner to take and state an account of the amount of taxes, value of improvements, rents, etc., finding the amount necessary, if any, to be paid by said heirs to redeem—"such amount being unknown, and the question having, by the agreement of counsel, been reserved"—and directed the commissioner to report his acts at the next term. It was further decreed that the defendants had a lien on the land for whatever amount the commissioner might show they were entitled to. The defendants appealed from this decree.

Wm. M. Randolph, George Randolph, and Wassell Randolph, for appellants. L. J. Farley and St. John Waddell, for appellees.

HILL, C. J. (after stating the facts).

1. The attack on the validity of the tax forfeitures and sales was abandoned in the chancery court, and is not insisted upon here, and the case was tried and determined upon the alternative prayer of the complaint, for redemption of the land from the tax sales. This eliminates the defense interposed and insisted upon here, that the suit could not be maintained without the affidavit of tender of taxes and value of improvements required by sections 2759, 2760, Kirby's Dig....