McCrary v. Joyner

Riddick, J., (after stating the facts.) The only question presented in this case is whether, admitting the facts stated in the complaint to be true, the plaintiff was required to file an affidavit showing a tender of taxes and costs of tax sale to the defendant before commencing his action for the recovery of the land. Our statute provides, in substance, that no person shall maintain an action for the recovery of lands against any person holding the same under a purchase at a sale by the collector or commissioner of state lands for non-payment of taxes, unless such person shall file an affidavit setting forth that he has made a tender of taxes, costs, interest, etc., and that such tender has been refused. Sand. & H. Dig., § 2595. One object of this statute was to give some value to tax titles, by requiring the owner of land, who, by failing to pay taxes due thereon, had permitted it to be sold, to first tender to the purchaser of such land the taxes, costs of sale and interest thereon, before bringing an action against him to recover the land. But this statute was not intended to apply when the title set up by the plaintiff was acquired subsequent to the sale for the non-payment of taxes, and was such that it operated to cut off the title acquired by the purchaser at the tax Sale. In such a case the plaintiff is not attacking the validity of the tax sale, and is not required to make a tender of the taxes and costs of sale. For instance, suppose that one should purchase land at a sale for the non-payment of taxes, and take possession under said purchase, and afterwards, by failing to pay taxes due thereon, should permit said land to be again sold for non-payment of taxes, and purchased by another. In that event the purchaser at the last sale would not have to tender taxes and costs of first sale to the first purchaser before bringing an action to recover the land; for, in order to recover, it would not be necessary for him to show that the first .sale was invalid. His action does not question the validity of the first sale, and he is in no way liable for the costs of such sale, and is not required to make a tender or file the affidavit mentioned above before bringing his action. Now, if the allegations of the complaint in this case are true, the tax title which the defendant sets up is not in conflict with the claim of plaintiff. The plaintiff does not have to contest the validity of such tax title, or the sale upon which it was based, in order to recover, for his title was acquired by adverse possession, commencing after said sale, and after the period of redemption had expired. The adverse possession of plaintiff, or those under whom he holds, if the facts alleged be true, cuts off the title acquired by defendant under the purchase at the sale for the non-payment of taxes, and cuts off also all rights resting upon said purchase, among which was the right to require those seeking to recover the land to tender taxes and costs of tax sale, and vested the title of the land in such adverse holders. Jacks v. Chaffin, 34 Ark. 534; Logan v. Jelks, 34 Ark. 547; Crease v. Lawrence, 48 Ark. 312. It is a matter of no moment that such adverse holders were the original owners of the land, whose duty it was to pay the taxes, and for the non-payment of which the -land sold; for the adverse possession of the land by the original owner against the purchaser at the tax sale for a period of over seven years after the right of action accrued to such purchaser under his purchase, cut off all rights acquired by the tax sale as completely' as if some third party had got possession of the land, and held it adversely, under color of title, for the statutory period. If the facts alleged be true, the right of the plaintiff to recover the land is as complete as if the defendant had, subsequent to the tax sale, conveyed the land to plaintiff, and he was not required to make a tender of taxes before bringing his action. Jacks v. Chaffin, supra; Logan v. Jelks, supra; Douglass v. Flynn, 43 Ark. 398. But, as the plaintiff made no tender of taxes, and did not file the affidavit required in certain cases by section 2595 of Sandels & Hill’s Digest, he cannot question the validity of the tax sale, and must rely upon title by adverse possession subsequent to the tax sale under which defendant claims. For the reasons stated, we are of the opinion that the court erred in sustaining the motion to dismiss the action. The judgment is therefore reversed, and the cause remanded, with an order to overrule said motion, and permit plaintiff to try his action upon the allegations of title by adverse possession.