Bender v. Bean

Cockrill, C. J. The complaint in this cause was filed for the purpose of effecting a redemption of the lands described therein from tax sales. It alleged that the plaintiffs, Julia and Adelia Bender, Sallie Morris and Maggie Vanlandingham, together with Walter and David Bender and Agnes Douglas, were tenants in common and owners of the lands when they were forfeited for the non-payment of taxes ; that the four-first named were the minor children and heirs of Samuel Bender, deceased, who died seized of the lands, and that the others were the heirs-at-law of Agnes Douglas, who was daughter to Samuel Bender and who died after the forfeitures that each of the defendants, Bean, Helms and Haynes held part of the lands by virtue of donation deeds from the State, executed in pursuance of forfeitures for the non-payment of taxes ; that they had made a tender to each of the amount required by law to redeem, and that the tenders had been refused. The prayer was for an account of rents and for the enforcement of their right to redeem. Haynes and Helms filed a joint answer admitting that they held under donation deeds, but denying that the plaintiffs were ever the owners of the lands, and alleged that they had paid taxes and put valuable-improvements upon them. Bean denied that he held under a tax deed; admitted that the lands in question had once belonged to Samuel Bender,, the plaintiff’s ancestor, and that he had died seized and possessed thereof, but alleged that the administrator of his estate,, acting under authority of the Probate Court of his appointment, conveyed the same to one David Bender before the forfeiture mentioned in the complaint, and that he had succeeded to David Bender’s title through certain mesne conveyances ; he pleaded the seven-year statute of limitations; alleged that the tax titles of Haynes and Helms were irregular and void ; ■made his answer a cross-complaint against them and the plaintiffs aud prayed that his title be quieted against the claims of title of all the parties. Proof was taken and the court heard the cause without objection from any source as to multifariousness or misjoinder of parties, and decreed that Bean had no title except as against the Douglass heirs; that the minor children of Samuel Bender were entitled to recover four-sevenths of the lands which he held; that they were entitled to redeem the same proportion of the lands held by Haynes and Plelms, on paying the excess of the amount of taxes paid, and the value of improvements made by the tax-purchasei's over the value of the rents enjoyed by them, and dismissed the complaint as to the heirs of Agnes Douglass. The plaintiffs appealed, and -afterwards cross-appeals were allowed here in favor of each of the other parties. Bean argues that he succeeded to the title of Samuel Ben■der, by virtue of the administrator’s deed, and that the decree granting the plaintiffs relief against him is wrong for that reason. Haynes and Helms also argue that the administratox-’s deed divested the title of the plaintiffs before the foi'feiture, -and left them without interest to redeem ; and say if they are •mistaken in that, that the court erred in refusing to allow them ■credit for the full amount of their tax expenses and the value •of the improvements, without diminution for rents enjoyed .by them. The successful plaintiffs complain because they are required to pay for any part of the improvements, and the other plaintiffs appeal because no relief was granted them. The facts in relation to the execution of the deed by Bender’s administratior, are as follows. In i860 Samuel Bender purchased the lands in dispute from David Bender, who, as all the parties admit, was then the owner in fee, making a cash payment and giving his notes for $2000 for the deferred payments ®f the purchase money. A lien was retained in the deed as security for the payment of the unpaid purchase money. Samuel Bender died in January, 1869. In March of the same year, Walter Bender was appointed administrator of his estate, and' in August, 1871, presented his petition to the Probate Court, of his appointment, alleging that the notes for the purchase-money were unpaid, and that the lands were worth less than the principal and interest due on them; that the estate was insolvent, and that he was unable to discharge the notes if" it was to the interest of the estate to do so; and prayed that authority be granted him to relinquish to David Bender all the interest of the estate in the lands, upon condition that he would surrender the purchase money notes to the petitioner. The order of the Probate Court in this connection is as-follows : “Upon examination it is considered and ordered by the court that the prayer of said petition be granted, and, he (the administrator) is hereby authorized to make said relinquishment.” The records of the administration of the estate of Samuel Bender were put in evidence, and it nowhere appears that the claim of David Bender against the estate of Samuel, was ever allowed by the court or presented to the administrator. In June, 1872, the accounts of Bender’s administrator were examined and approved, and the administrator was discharged. In October, 1874, a deed of relinquishment was executed by Walter Bender, purporting to act as administrator of the estate of Samuel Bender, deceased, to David Bender, to carry out the order of August, 1871, in reference to the settlement of the purchase-money notes. The deed was acknowledged by Walter Bender before the Probate Court, and was spread at. large upon the record ; no order in reference to the matter - was made by the Court. David Bender appeared at the time ■ the deed was acknowledged, and surrendered the "purchase-money notes. No other action was had in the matter of the ■ estate after the discharge of Walter Bender as administrator in,. 1873. The lands were assessed for taxation in the name of David Bender after 1874. He conveyed them to one Allen, and Allen to the defendant, Bean. Bean and those through whom he claimed title, had been in the adverse possession for more than seven years when the suit was instituted. 1. Administration: Relinquishment of land to vendor of decedent: “Chapters of Digest.” Such is Bean’s title. The order of the Probate Court, of August, 1871, was evidently made in pursuance of the supposed authority of the fourth section, of chapter 3, of the so-called “Chapters of the Digest,” which was to the effect that where lands of a decedent had not been paid for, the court might, if it believed it advantageous to the estate, “order the same to be relinquished” to the vendor on the most advantageous terms that could be agreed upon. But the “Chapters of the Digest ” did not receive legislative sanction in legal form and the provision referred never became a law. Vincent v. Knox, 27 Ark., 267. In 1873 the Legislature enacted that all sales previously made in pursuance of the “Chapters of the Digest” should be binding {Acts of 1873, p. 13), but this act could add nothing to the validity of the order.of August, 1871, because it was not in itself a sale, but purported only to confer authority upon the administrator to sell, and the power had not been executed when the healing act was passed. If the order rested upon the supposed authority of the “Chapters o.f the Digest,” it was a nullity, and no rights could be acquired under it. 2. Same : Same. But it is argued that under the act of March 16, 1871, which was in force when the order was made, the Probate Court was clothed with all necessary jurisdiction at law and in equity, to do what was necessary to close up the administration of estates (Acts of 1871, p. 18), and that being a superior court and having jurisdiction of the subject matter, the order is valid. But the order does not profess to divest the title of the estate and vest it in David Bender, as counsel argue. And, if it be admitted that the Probate Court had authority to do that, it could not have been effected upon the ex patte petition of the administrator. The order was not binding on David Bender. His assent to the condition upon which the conveyance was to be made, that is, the surrender of the notes which he held, was necessary to give it effect. But his assent was not obtained, and no effort was made to execute the order until the administrator had been shorn of his authority to act by the court’s order of removal. What he did after removal was no more than the act of a stranger. The administration had ceased, the heirs had the right to the possession of the land (Stewart v. Smiley, 46 Ark., 373), and the court had lost its jurisdiction over it. An order confirming the execution of the previous power to sell under such circumstances could not have breathed life into the deed. It would have’been an ex parte judgment with no party in interest before the court, and no cause pending. See Phelps v. Buck, 40 Ark., 219; Sumner v. Howard, 33 ib., 490; Gwynn v. McCauley, 32 Ark., 97. There was no error in declaring Bean’s claim of title without foundation. 3. Statute of Limitations : When infants barred. The plaintiffs who recovered against Bean were minors when their cause of action accrued, and when the suit was brought, and the statute of limitations did not operate as a bar against them. But the minority of the heirs of Agnes Douglass is no protection to them, because the statute was set in motion in the lifetime of their mother. It follows that the plaintiffs in whose favor the decree was rendered were owners of the land when they were forfeited to the State for the non-payment of taxes, and as they were within the age when their suit was begun, their right to redeem was intact and could be enforced in equity. Carroll v. Johnson, 41 Ark., 59; Keith v. Freeman, 43 ib., 296. The questien is, what must an infant pay to redeem, or what is the tax-purchaser entitled to receive as the price of redemption ? The answer, so far at least as the purchaser is concerned, depends upon the law in force when the rights of the parties accrued. Railway v. Alexander, 49 Ark. 190. 4. Tax Sales: Minor’s right of redemption: Compensation for improvements. One of the tax deeds is based upon a sale made in 1876, and the other in 1877. The lands were certified to the State Land Commissioner, and donation certificates were issued by him to the present claimants in 1879, and were followed by deeds in due course of time. The privilege of redemption was extended to minors by the revenue act of 1873 (Gantt's Dig., sec. 5197), and has remained unchanged. By the seventeenth section of the amendment to the revenue law enacted March 5, 1875, any person desiring to redeem lands sold, for non-payment of taxes could do so within the time limited by law, by paying “an amount of money equal to the taxes for which the land was sold, penalty and cost of advertising; and the taxes subsequently paid thereon by such purchaser, or those claiming under him, together with interest at the rate of ten per cent, per annum, on the whole amount so paid and the amount paid by the purchaser for the certificate of purchase, and the expenses of advertising.” Acts of 1875, p. 227. 5. Same : Same. While this section applies to redemption by minors (Keith v. Freeman, sup.), the reference to payment for a certificate of purchase without mentioning the deed shows that the Legislature had in view more particularly a redemption within two years from the sale and before a deed issued. Nothing is said therefore in this section about improvements. Butin section 186 of the same act (Gantt's Dig., sec. 5216), it was declared that no compensation should be allowed for improvements made within two years of the sale, but that for “improvements made after two years from the date of sale (such) proceedings shall (should) be had in relation thereto as shall be prescribed in any law existing at the time of such proceedings for the relief of occupying claimants of land.” This law was in force when the forfeitures were had. It was then, a condition upon which the right to redeem was granted to the minors, that the Legislature might regulate the compensation to be paid by them for improvements thereafter placed on their land by the tax-purchaser. The amount of the taxes, penalties, and the rate of interest the purchaser was to receive were unalterably fixed by the terms of the implied contract made at the date of his purchase. These are regulated as we have seen by the act of 1875 above quoted. The law for the relief of occupying tax claimants of land in force when the suit was instituted, was the 155th section of the revenue act of 1883 (Mansf. Dig., sec. 5792), which provides that they shall be allowed the full cash value for improvements made after two years from the date of sale. The law was passed subsequent to the “betterment act” and gives to the claimant the right to compensation without the showing of belief in the integrity of his title, which is demanded by the latter act. Being the last expression of the Legislative will and applicable especially to tax claimants it prevails in this suit. The court followed the correct rule in allowing the tax-purchasers the value of the improvements made by them. 6. same: Minor right to redeem, not an estate: Rents. But upon what principle can they be charged with the value of the rents? Upon the execution of the tax deeds they became the owners of the lands. Craig v. Flanagin, 21 Ark. 319. The minor’s right to redeem is not an estate in the lands, but only a statutory privilege to defeat the purchaser’s title within a limited time. That was the effect of the ruling in Craig v. Flanagin, sup., where the right to redeem by a non-resident — a privilege granted by a previous law — was considered. The right is analogous to a condition subsequent attached to an estate, and it was only by virtue of the statutory recognition of the minor’s vendee that we were able to rule that the privilege was not strictly personal. Neil v. Rozier, 49 Ark., 551; Mansf. Dig., sec. 4272. The plaintiff’s suit to redeem was an affirmance of the validity of the tax titles and an election to defeat them by complying with the law governing such cases. It is true allegations of irregularities in the tax proceedings were made in the complaint, but the proof does not sustain them. The court erred, therefore, in charging Haynes and Helms with rents. As to them the decree will be reversed and the cause remanded with instructions to enter a decree in accordance with the opinion. Otherwise the decree is affirmed. SUPPLEMENTAL OPINION ON MOTION TO MODIFY DECREE AS TO RENTS. 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. 7. Same: Tender of payment: Offer to redeem. 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 seized 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. 8. Same: Same' 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.