Thompson v. Sherrill
| Decision Date | 25 May 1889 |
| Citation | 11 S.W. 689,51 Ark. 453 |
| Parties | THOMPSON v. SHERRILL |
| Court | Arkansas Supreme Court |
APPEAL from Pulaski Chancery Court, D. W. CARROLL, Judge.
Decree reversed and dismissed.
Marshall & Coffman, for appellants.
Chapter 104, Mansfield's Digest repeals by implication so much of sec. 4489, Mansf. Dig. as exempted a married woman from the statute. 47 Ark. 558. The Constitution of 1874 authorizes her to convey as a femme sole. 43 Id., 160. Her name is omitted from the privileged class in the matter of redemption of lands, by act March 31, 1883. Mansf. Dig., sec. 5772. After that time she has only two years to redeem, or she is barred.
The rule in redemption from execution sales is that the law in force at the time the sale is made governs. 31 Ark. 429. The same applies to sales under decrees in chancery. Mansf. Dig sec. 3072. Also to tax sales Cooley Tax., p. 545; Borough on Tax., p. 322; 11 Paige Chy., 484.
The disability, to be availing, must exist at time of sale. Borough on Tax., p. 362; Desty on Tax., p. 1002.
The legislature can remove disabilities at any time. They are an act of grace--and being a part of the remedy or procedure may be changed at any time, during suit, or after appeal, and no contract right is impaired. Cooley Const. Lim., p. 366; 6 S.Ct. 209; 115 U.S. 620; 48 Ark. 183.
Sec. 11 of the overdue tax law is not binding on future legislatures.
All statutes in pari materia should be construed together, even though one or more be repealed. Smith St. and Const. Law sec. 637-8; Potter's D. W. on St., p. 189, note 9.
The overdue tax law was continued in force as to pending suits. 44 Ark. 273. Construing the three acts together as in pari materia, and remembering that the latest law in force at the time of sale governs in matters of redemption, Mrs. Sherrill is barred by the act of 1883.
John B Jones, also for appellant.
There is no inherent right in any one to redeem from tax sales or decrees. It is a mere act of grace, or statutory privilege. Prior to 1868, minors and married women had to redeem within the same period as other persons. 20 Ark. 17.
Married women are not expressly exempt from the provisions of the overdue tax act. The only provision for redemption is found in sec. 11, which provides for redemption within the same period fixed by law for other lands sold for taxes, i. e., two years, with special privilege to married women. Construing this section with sec. 15, it is plain the legislature intended to allow only two years, and did not embrace the exception. The special provision of sec. 15 controls the general one in sec. 11. 17 Wis. 530; 38 Ill. 451; 15 Ark. 583; Potter D. W. on St. and Const., 272; Endlich on Int. St., 43, 44.
The act 1883, general revenue law, repealed all former laws on the subject, and married women are not exempted--she must redeem as others. 1 Pick. 45. The law at time of sale governs the redemption, the sale occurred after the passage of the act of 1883, and the appellee is barred.
Blackwood & Williams, for appellee.
It was the settled policy of the law before the passage of the overdue tax law, that married women had two years after the removal of their disabilities to redeem, and they intended to include it in secs. 11, 13. 41 Ark. 62; Gantt's Dig., sec. 5197. They simply embodied into the act sec. 5197, with its exceptions, as much so as if they had re-enacted it.
The general revenue law of 1883 does not repeal sec. 5197, except by implication, by omitting to name her in the exceptions. But general laws do not repeal special laws (as the overdue tax act) on a different subject. Blackwell on Tax Titles, 480; Sedg. Con. St. and Const. Law, 97, 104; Potter's D. W. on St., etc., p. 154; 41 Ark. 152; 24 Id.,479; 34 Id., 499; Chamberlain v. State, 50 Ark.; 19 Iowa 61; 20 Id., 24.
Redemption statutes are liberally construed. 9 Watts, 99; 1 Rob., (La.) 421; Black. Tax Titles, 432.
See opinion attorney general, December, 1886, p. 65, in which a married woman's right to redeem is upheld.
On the 16th day of May, 1883, pursuant to a decree of condemnation, by the Pulaski chancery court, the E. half N.W. quarter and N. half S. E. quarter, Sec. 28, T. 1 S., R. 10 W., were sold to the State of Arkansas, under the "over due tax law," and afterwards certified to the State Land Commissioner. On the 16th day of March, 1886, the State sold to appellant D. H. Thompson, the E. half of the N.W. quarter, and to appellant Boss Henson the N. half of the S. E. quarter of Sec. 28, T. 1 S., R. 10 W., and made deeds to them for the same. Appellee brought this suit in chancery to redeem these lands, September 3, 1886, more than two years after the sale of them to the State, under the decree for overdue taxes, and alleges that she was at the date of the sale and thence until the filing of her complaint, a married woman, and that the lands were her separate property; that she had tendered to each of the purchasers the amount necessary to redeem the land purchased by him and that the same had been refused; and she makes a tender of said amounts in her complaint. Defendants filed separate answers, denying plaintiff's rights as a married woman, or otherwise, to redeem, and asked that their answers be taken as demurrers, and that they be considered as cross complaints and that their titles as against the plaintiff be quieted. Plaintiff demurred to that part of the answers of defendants, which denied the right of plaintiff as a married woman, to redeem the lands in controversy. This demurrer was overruled, with leave to the plaintiff to raise the same questions of law at the final hearing; the cause was submitted on complaint, answers, exhibits and depositions. The chancellor found at plaintiff was a married woman at the date of the forfeiture of the lands: for the non-payment of the taxes due thereon, and at the date of the decree; that she was the owner of said lands, and was the owner thereof at the date of the forfeiture, and had been in possession since March, 1867; and held that she had the right to redeem the lands, and so decreed; that the deeds of defendants be canceled, and as against them, that plaintiff's title be quieted. Defendants excepted and appealed.
Sec. 11 of the act entitled, "An act to enforce the payment of overdue taxes," approved March 12, 1881, provides that "The owner of any...
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