Pulaski County v. Hill

• Decision Date: 30 January 1911
• Citation: 134 S.W. 973
• Parties: PULASKI COUNTY et al. v. HILL et al.
• Court: Arkansas Supreme Court

134 S.W. 973

PULASKI COUNTY et al. v. HILL et al.

Supreme Court of Arkansas.

January 30, 1911.

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor.

Suit by Abbie Hill and others against Pulaski County and others. From a decree for plaintiffs, defendants appeal. Affirmed.

J. C. Marshall and Harry Hale, for appellants. Geo. L. Basham, for appellees.

FRAUENTHAL, J.

This was an action originally instituted for the purpose of removing certain deeds as clouds upon the plaintiffs' title to the land involved in this suit. Subsequently, the complaint was so amended that the sole remedy sought by this action was to redeem said land from a tax sale. The plaintiffs below were the widow and heirs of one John Hill, who acquired the land in controversy by purchase in 1878, and died in 1906. The land was sold on June 11, 1888, for the nonpayment of the taxes of 1887, to one R. W. Martin, and the defendants, who are appellants herein, claim title to the land under conveyances from his heirs. In 1891 the above tax sale of said land was confirmed by a decree of the chancery court, and in 1893 a complaint was filed by said John Hill to set aside said decree, and upon the hearing thereof it was dismissed for the want of equity. In September, 1892, the heirs of said R. W. Martin instituted an ejectment suit against said John Hill for the possession of said land, and in 1898 obtained a judgment for the recovery of the possession of all said land, except 3½ acres, which were adjudged to the Little Rock Granite Company, one of the appellants herein, and subsequently the heirs of R. W. Martin conveyed the land adjudged to them in said ejectment suit to the other appellants.

In the complaint it was alleged that John Hill was an insane person in 1887, the time when said land was forfeited for the nonpayment of taxes thereon, and that he labored under said disability continuously from that date until his said death in 1906, during all of which time he owned and resided upon said land. Deriving their right to the land as the widow and heirs of John Hill, the plaintiffs instituted this suit within one year after his death to redeem same from said above tax sale, on the ground that he was laboring under the disability of insanity at the date of said tax sale and up to the date of his death, and that the right to redeem said land descended to them, which they could enforce at any time within two years after his disability was removed by his death.

A great mass of testimony was taken relative to the question as to whether or not John Hill was during said above time of unsound mind; and upon the hearing of this case the chancellor found that during said time he was insane, and declared that his heirs had the right to redeem said land from said tax sale. A decree was entered by the chancery court in accordance with said finding of fact and conclusion of law, and from that decree the defendants, claiming under said tax title have appealed to this court.

The right of the plaintiffs to redeem the land from the above tax sale, as a matter of law, depends upon whether or not the right to redeem, which is by the statute granted to insane persons, is descendible to their heirs. That statute, which was in force at the time of the forfeiture, provides that: "All lands, city or town lots belonging to insane persons, minors or persons in confinement and which have been or may hereafter be sold for taxes, may be redeemed within two years from and after the expiration of such disability." Kirby's Dig. § 7095. It is urged by counsel for defendants that this statutory right to redeem is a mere personal privilege, to be enjoyed solely by those laboring under the disabilities mentioned in the statute, and that such privilege ceases with the death of such persons. But the statute makes this right of redemption inhere in the land itself, and does not grant it as a privilege personal only to the owner who labors under the disability. The statute provides that the land itself may be redeemed, and not simply that the owner laboring under the disability may redeem it. The statute does not confine the right to redeem to any person, but grants the right as an interest running with the land for the period mentioned therein, after the expiration of the disability of the owner. As is said in the case of Neil v. Rozier, 49 Ark. 551, 6 S. W. 157: "This provision does not profess to make the right of redemption personal to the minor who owned the land at the time of the forfeiture. It is not specified in this or any other of the provisions of the law governing this case that the power must be exercised by the minor more than another, whom it may concern at the time of redemption. It is not provided simply that the minor may redeem, but that the lands may be redeemed. The power is not appended to the person of the minor but is impressed upon the land as an incident to the estate." The law casts upon the heir every right and interest in the land which his ancestor possessed at the time of his death; the interest and right therein descends to him just as it was in the ancestor, and can be maintained in his behalf just as it could have been asserted by the ancestor. The owner who labors under the disability mentioned in the statute could assert the right of redemption, for the period therein named, and his death, while still laboring under such disability, would not abridge that right in his heir, upon whom the law casts the estate and every right incident thereto. In the case of McNamara v. Baird, 72 Miss. 89, 16 South. 384, it was held that, where an infant having until one year after majority to redeem land from tax sale dies, his heir has the same right and time in which to redeem, and that giving to the heir this right to redeem is but giving effect to the right existing in the ancestor, which by operation of law is cast upon the heir. It is urged, however, that in the case of Bender v. Bean, 52 Ark. 132, 12 S. W. 180, 241, it is held that the right of redemption given by this statute to a minor is only a privilege personal to him. That was a case in which the minor was endeavoring to redeem, and the question involved therein was whether or not the holder of the tax title was liable for rents prior to the time that the redemption was effected in the manner provided by law. It was there only decided that the title to the land passed by virtue of the tax deed, subject to be defeated by the redemption, and that until the minor did assert his right to redeem in the manner provided by law, the holder of the tax title remained the owner of the land and could not be made to account for rents thereof. To the extent of asserting his right of redemption for himself while living, it was held that the privilege was personal to the minor; but it did not hold that one standing by law in his place could not assert this right to redeem, or that his right of redemption was not vendible or descendible. But we think that this question is settled by the case of Smith v. Thornton, 74 Ark. 572, 86 S. W. 1008. That was a suit seeking to redeem land forfeited and sold for the nonpayment of taxes. The plaintiff in that case inherited the land from her son, who was insane at the time of the tax sale and up to the date of his death, and the action to redeem was commenced within two years after his death. In that case it was held that the plaintiff did have the right to redeem the land from said tax sale and thereby it was necessarily ruled that the right to redeem was descendible. It is true that in said case it was also held that a decree of confirmation of said tax sale would not cut off the right to redeem which was granted by ...