Waterman v. Irby

McCurroch, J., (after stating the facts.) 1. Counsel for appellants contend, first, that the chancellor erred in treating this as a suit to redeem. The complaint contains all the allegations essential to that relief, and no other, though the prayer is only that the tax sale be canceled, and the land decreed to belong to the plaintiff. Under a prayer for general relief, the court may grant any relief that the facts stated and proved will warrant, although it may be inconsistent with the special relief prayed. Kelly’s Heirs v. McGuire, 15 Ark. 555; Shields v. Trammell, 19 Ark. 62; Dews v. Cornish, 20 Ark. 332; Chaffe v. Oliver, 39 Ark. 531. If the complaint states, and the proof establishes, facts sufficient to constitute a cause of action, relief should not be denied because the plaintiff is mistaken in the relief asked. Ashley v. Little Rock, 56 Ark. 391. Moreover, the defendants in their answer treated the complaint as seeking a redemption, and tendered an issue as to the right to redeem. The proof was, without objection, all directed to that issue, and the prayer of the complaint must- be treated as amended to conform to that issue. Davis v. Goodman, 62 Ark. 262. The appellants cannot take advantage here, for the first time, of a defect in the prayer for relief. 2. It is next contended that the tax sale, which was the basis of the State’s donation deed to Warren C. Irby, was void, and that on that account the alleged title of appellee failed. The burden was upon appellee to prove that he was the owner of the lands at the time of the tax sale to Waterman, and to sustain his claim of title he introduced the donation deed and copy of the certificate of improvement. This made a prima facie case, and cast upon appellants the burden of showing that the tax forfeiture was invalid. Thornton v. St. L. Refrigerator & Wooden Gutter Co., 69 Ark. 424. The statute in force at the time of the donation in question provided that the donation deed and certificate of improvements “shall be evidence in all the courts of a good and valid title in the donee, his heirs and assigns, and shall be evidence that the lands had been regularly forfeited by the original owner, that the State had properly donated its right thereto, and such evidence shall be received by the courts.” Act Dec. 23, 1840. Appellants, to sustain their attack upon the donation deed, introduced in evidence the records of the levying court and the record of tax sales for the years 1865 and 1866, which tended to show that the lands were sold for taxes and cost in excess of the amount lawfully assessed. There is no proof, however, in the record that the State’s title was based on forfeitures for either of those years, and the prima facie case made out by the donation deed is not overcome. There may have been a valid forfeiture subsequent to those years, and, in giving force to the statute, we must presume that there was until the contrary be shown. The right of appellee to redeem the land must also be sustained upon another ground, about which there is no dispute in the pleadings. His ancestor, who held under the donation deed, paid taxes on the lands for a number of years, and, having a lien therefor, it constituted such an interest in the lands as entitled him to redeem. Smith v. Thornton, 74 Ark. 572. The writer hereof does not approve the doctrine just stated. He expressed his dissent therefrom in the case just cited; but the question must now be treated as settled by the decision in that case, and it is conclusive of the case at bar. 3. The chancellor erred in decreeing a sale of the lands for the amount found to be due appellants by appellee to accomplish the redemption. The right to redeem from tax sales is one conferred by statute upon the terms therein named, i. e. the payment of all taxes and cash value of improvements. Kirby’s Digest, § § 7095, 7115. When the amount is ascertained, it must be paid before' the redemption is accomplished. The court should not order the lands sold in aid of the effort to redeem.' If the claimant asserts the right to redeem, he must pay the proper amount when ascertained. Nor should the court have fixed any time within which appellee should redeem. The statute fixes the time,-and appellee may still redeem by paying the amount fixed by the court. The decree is affirmed, in so far as it declares the right of appellee to redeem and fixes the amount to be paid in redemption, but is reversed as to the order for sale of the lands.