Nicklase v. Morrison

Hemingway, J. The appellant contends that the person who owned the land up to the time of the overdue tax sale offered, in apt time, to redeem it from the purchaser at the sale; that the failure to perfect the redemption was due alone to the unlawful refusal of the appellee to accept the offer; and that as the offer had been preserved by a tender with the bill of complaint, it operated to protect the owner’s right to the land and, through it, appellant’s title to the trees. Whether the conclusion is legally deducible from the premises stated, we need not determine; for the facts in proof do not warrant the major premise. If any offer to redeem was ever made, it was on the 27th of April, 1886 ; and in whatever light we view the case, the right to redeem had then expired. If we look to the statute, unaffected by the agreement, to ascertain when the period of redemption expired, and assume that it began on the day the sale was confirmed, as is contended by appellant, we find that it expired on the 15th day of August, 1885, since the confirmation was on that day in 1883. On the other hand, if it- be conceded that the agreement was not within the statute of frauds, and was operative to extend the period of redemption according' to its terms, it only stipulated for an extension of one year from the day it was made, to-wit, the 20th of April, 1885, and therefore the period as extended had expired before the tender was made. So, without determining when the period of redemption began, or whether the agreement to extend it was invalid as within the statute of frauds, but assuming that the appellant’s contention is correct, we find that the offer to redeem was not made in apt time, and that the facts of this case do not justify the position taken. 1. Tax sai» carries timber* It is contended, in the next place, that the appellant , acquired title to the trees, because they were cut by the former owner and sold to her while such owner was lawfully in possession of the land, and had a right to redeem it. That presents the question whether the purchaser of the timber from one in possession under a right to redeem is entitled to it as against the purchaser of the land, after the right to nedeem has expired and the latter has received a deed, where it appears that the trees comprised the principal value of the land, and they were not cut in the course of the customary use of the land or in order to its customary enjoyment. We are of opinion that although the sale had been made and confirmed, and the amount of the bid had been paid by the purchaser, the legal title to the land remained in the former owner during the time allowed to redeem it, and gave the right of possession with the right of use in the customary way. Such a right has been held to entitle one to sever matured crops, to mine coal, or to receive the flow of oil, and apply the produce to his own use. 2 Freeman, Ex. sec. 323 ; Ward v. Carp River Iron Co. 47 Mich. 65 ; Hardenburg v. Beecher, 104 Pa. St. 20. While it exists, the purchaser has no right to invade the possession of one holding under it, or to in any way interfere with his lawful use and enjoyment of it. But although such purchaser does not acquire a legal title nor the right to present, enjoyment, he does acquire an inchoate interest in the land and right to its future enjoyment, which will become consummate at the expiration of the time to redeem, unless the right to redeem is sooner exercised; and that inchoate right is not confined to the indestructible soil, but extends as well to everything affixed to it, as buildings or standing trees, except such as may be consumed in the customary use of it. Any other rule would be manifestly unjust to the purchaser, and very seriously embarrass sales made subject to the right to redeem. For the purchaser bids for the land, and not for a part, of it, and by the confirmation his offer is accepted ; thereafter he is irrevocably bound; and as it must be presumed that his bid was made with reference to the condition and value of the property offered, he is entitled, if no redemption is made, to get the land he bid for, and not what may be left of it after a term of wasteful and destructive use. So in this case if the trees had been standing when the appellee obtained his deed, they would have been his, by virtue of his purchase; and we cannot see how the unlawful severance and sale of them can deprive him of that right and vest it in another. If such a result could be lawfully accomplished, no one would be so foolish as to bid any fair price for lands thus sold, but bids would be limited to sums deemed adequate for the indestructible elements of the soil. It would prejudice alike the rights of debtors and creditors, and our legislation was certainly never thus designed. The case of Whitney v. Huntington, 34 Minn. 458, is quite similar to this, and in it the court decided that when the deed was delivered, the purchaser was entitled to trees cut during the period of redemption, or in default thereof to their value. The opinion is well reasoned, clear, and, we think, convincing ; in it will be found a citation of the authorities bearing upon this question, and to them we refer. Our conclusion is, that when the appellee got his deed he was entitled to the land and to all trees unlawfully cut from it during the period of redemption. Tiedeman, Real Property, sec. 82. 2. Enhanced at>L!ee0Ter’ It is insisted, in the last place, that the appellant is entitled to be reimbursed to the extent that the trees Were enhanced in value by being cut. They were the trees of the appellee, and neither the appellant nor any other person could acquire a debt against him by doing unlawful and unauthorised acts about them. Whatever •of force there is in the contention is resolved against the appellant in the case of Stotts v. Brookfield, 55 Ark. 307, which makes it unnecessary to say more here. Affirm.