Wyse v. Johnston

Hmu, C. J. As will be seen from the agreed statement of facts, which will appear in the statement by the Reporter, the only question presented here is whether redemption of lands from tax sale is payment within the meaning of section 5057 of Kirby’s Digest. That section, as construed by this court in Towson v. Denson, 74 Ark. 302, and Updegraff v. Marked Tree Lumber Co., ante, p. 154, confers the title to unimproved and uninclosed lands upon the person who pays the taxes thereon for seven years in succession, if he have color of title thereto, by force of it in connection with the general statute of limitations. In the latter case it was said: “It was not the intention of the law-makers to make the act of paying taxes a character of possession of any greater force than that of actual possession, possessio pedis. Under the general statute of limitations, any character of possession must be continuous, and must be unbroken for the full period of seven years. We see no reason why a different construction should be placed upon the statute declaring the payment of taxes to be an act of possession.” The reasoning of these cases is fatal to the appellant’s contention that redemption from the tax sale could be payment within the meaning of the said section, because non-payment of the taxes for any one year would break the continuity of possession. The appellant argues that the question of possession is a question of intention, and that the redemption would evidence the intention to pay the taxes, and that non-payment followed by redemption is similar to a temporary abandonment of possession, which, it was held in certain instances,, such as Robinson v. Nordman, 75 Ark. 593, does not destroy the continuity of possession. The theory of such cases is that the abandonment was not permanent, and the claim of ownership was still patent to observation. The flag was still flying. The non-payment of taxes leaves no trace on the record of an intention to later redeem. The later redemption would be analogous to a re-entry after a total abandonment where no flag was left flying. Such has been the view in other States. A party in Illinois sought to acquire title under a statute similar in import to section 5057 of Kirby’s Digest, and allowed land ito be sold for taxes during the running of the statute, and afterwards redeemed; and the court held that his possession must begin over again from the time of the redemption. Wettig v. Bowman, 47 Ill. 17. In McDonald v. McCoy, 53 Pac. 421, a statute of California of similar purpose to section 5057 of Kirby’s Digest was under consideration, and the court said: “If there is anything of benefit to the State contemplated by this anomalous law, it is that it will have a tendency to induce people to pay their taxes, and not compel the State to take the title subject to redemption. If it is an element in the adverse possession tending to show good faith, certainly during those years in which the taxes have not been paid the possession lacks an -essential element required in the statute. During all the years in which the delinquency was allowed, the true owner might forbear suit because of his knowledge that the person in possession had not paid taxes, thereby indicating .that he was not holding adversely.” The above excerpt gives a good reason why the redemption should not have been held to be payment within the meaning o.f said section. Moreover, the language is not susceptible of this construction, for paying taxes and redeeming from tax sales are two separate and distinct things. One can not be construed as the other when each has a separate, distinct meaning, well defined in law and well known to the public. Judgment is affirmed. Mr. Justice McCuuuoch not participating.