Hisey v. Sloan , 180 Ark. 797 ( 1930 )

STATEMENT OF FACTS.

Appellants brought this suit in equity against appellees to cancel, as a cloud upon their title, certain deeds held by appellees to 200 acres of land. Appellees asserted title to the land under purchase at a mortgage foreclosure sale, and appellee Sloan claimed title to the land by virtue of a purchase of it at a tax sale. He filed a cross-complaint, in which he asserted that the lands involved in this suit became delinquent for the taxes due thereon for the year 1922, and were duly advertised and sold for the nonpayment of said taxes on June 11, 1923; that he became purchaser of said lands at said sale, and received a certificate of purchase thereof; and that, after the expiration of two years, the period of redemption having elapsed he presented his certificate of purchase to the county clerk, and received a clerk's tax deed conveying to him said land; and that said deed was duly executed and acknowledged on December 16, 1927. The prayer of his cross-complaint is that the complaint of appellants be dismissed for want of equity; that the sale of the land by the trustee under the deed of trust be approved; and that, in event the deed of trust is declared invalid, as to the interest of the minors, the title to said land be confirmed in him under his purchase at the tax sale, and the tax deed executed to him thereunder.

The facts upon which the decree of the chancery court are based are recited in the decree, and, so far as material to the issues raised by the appeal, may be stated as follows: L. D. Brown owned the 200 acres of land in controversy, and executed a will whereby he devised it to his wife, Ella Brown, and to his infant son and daughter, Paul and Sadie Brown. L. D. Brown died in May, 1916; and, after his death, his will was duly probated by his widow. She became the executrix under the will, and was also appointed guardian of her minor children. She afterwards married, and is now Ella Brown Hisey. In 1920, she applied to the probate court for authority to borrow money, as guardian of her minor children, for the purpose of educating them, and to execute a mortgage on their undivided two-thirds interest in said land, together with her one-third interest therein, to secure said indebtedness. In 1920, pursuant to said order, she borrowed the sum of $1,280 from Clay Sloan, and executed her notes therefor. She also executed a mortgage on her own, and the interest of her minor children in said land, to secure the payment of said indebtedness. Having failed to pay the mortgage indebtedness, the land was sold under the power of sale contained in the mortgage, and A.J. Lewis became the purchaser thereof.

The chancery court found that because the amount of money borrowed by Ella Brown Hisey, guardian as aforesaid, was less than two-thirds of the appraised value of the land, as authorized by the probate court in the order of sale, the note and mortgage were void as to the undivided two-thirds interest in the land owned by the minors; that the sale under the mortgage was likewise void, but that the sale under the mortgage, to the extent of the one-third interest of Ella Brown Hisey, was valid; that there was a balance due on the mortgage indebtedness of $2,371, for which amount appellee Sloan was entitled to judgment on his cross-complaint against Ella Brown Hisey; that said land was forfeited for the non-payment of State and county taxes for the year 1922, and was duly sold at tax sale in June, 1923; that Clay Sloan became the purchaser at the sale, and that, no one having redeemed said land from the tax sale, a clerk's tax deed was executed to him on December 16, 1927; that, by virtue of said tax deed, the undivided two-thirds interest of said minors vested in said Clay Sloan. It was therefore decreed that appellants take nothing by their complaint, and it be dismissed for want of equity; that Clay Sloan, on his cross-complaint, have judgment against Ella Brown Hisey for $2,371, and that said judgment is a lien on her undivided one-third interest in said land. A decree of foreclosure was entered of record for sale of the land in case of the non-payment of the judgment within the time stipulated in the decree. It was further decreed that the undivided two-thirds interest of said minors in the land be vested in Clay Sloan by virtue of his clerk's tax deed. The case is here on appeal. (after stating the facts). It is contended that the court erred in not allowing the minors to redeem the land from the tax sale, and, in this contention we think counsel are correct. Our statute authorizes the sale of land delinquent for nonpayment of taxes, and it also contains a saving clause, granting to minors the right to redeem the land from the tax sale within two years after the expiration of their disabilities as minors. This court has uniformly held that all the world must take notice of the statute granting to minors the privilege of redeeming the land from a sale for taxes. Bender v. Bean, 52 Ark. 132,12 S.W. 180; Seger v. Spurlock, 59 Ark. 147,26 S.W. 819; Hodges v. Harkleroad, 74 Ark. 343,85 S.W. 779; Bradbury v. Johnson, 104 Ark. 108, 147 S.W. 865; Ann. Cas. 1914, 6, 419; and Lightle v. Laws, 123 Ark. 537,186 S.W. 73

Counsel for appellee, Sloan, the purchaser at file tax sale, seeks to uphold the decree holding the tax sale valid, for the reason that appellants did not raise this issue in their complaint, and did not offer to redeem the lands therein. Appellee, Sloan, filed a cross-complaint in which he asks that the title be vested in himself, under his purchase at the tax sale. When this was done, it became the duty of those representing the minors to raise the issue for them, and if they did not do it, it became the duty of the court to protect their interest. The court did treat this as an issue, as appears from the decree, but the chancery court was wrong in decreeing that the title should vest in appellee, Sloan, without giving the minors the right to redeem. This issue was raised by the cross-complaint, and by the facts on this point recited in the decree, and the court erred in not allowing the minors the right to redeem from the tax-sale.

Again, counsel seek to uphold the decree upon the ground that there is no bill of exceptions, and that oral evidence was introduced at the trial. The decree does show that oral evidence was introduced, but it also undertakes to recite all the facts in the decree itself, upon which the chancellor based his opinion. This court has uniformly held that no bill of exceptions is necessary, where the judgment of the lower court, reciting the facts on which it is based, shows error on its face. Baucum v. Waters, 125 Ark. 305, 188 S.W. 802, and cases cited; Sizer v. Midland Valley Railroad Co., 141 Ark. 369,217 S.W. 6; and Howell v. Miller, 173 Ark. 527,292 S.W. 1005.

The error of the chancery court in not allowing the minor children the statutory right of redemption appears upon the face of the record. Not only the facts recited in the decree were part of the record, but the pleadings in the case were also a part of it. Therefore, the error of the court was apparent from the face of the record itself, and no bill of exceptions bringing in the testimony on the record was necessary.

Inasmuch as the decree must be reversed for the error in not allowing the minors their statutory rights to redeem from the tax sale, we will call attention to their rights, and the rights of the purchaser at the tax sale upon redemption. The purchaser at the tax sale was entitled to a deed two years from the date of the sale, and, after the execution of the deed, the purchaser was entitled to the possession of the land. The existence of the right of redemption in the minors until two years after majority has the effect of making such right a condition subsequent to the tax deed. The same law under which the purchaser acquired his right to the land also confers the right of redeeming upon the minors. Without redeeming, the minors hold no present interest, and can only assert a right to the rents after they have offered to redeem. Lightle v. Laws, 123 Ark. 537, 186 S.W. 73; Bender v. Bean, 52 Ark. 132, 12 S.W. 180; and Seger v. Spurlock, 59 Ark. 147, 26 S.W. 819.

These authorities hold that the tender made by the owner to the purchaser is the point at which the title changes, and the positions are reversed. Up to that time, no rents are due from the purchaser, while all moneys paid out for taxes and the value of all the improvements are due to him. Improvements made after an offer to redeem, and taxes paid afterwards, except by contract, are not charges against the owner or on the land, and the purchaser in possession is bound for rents accruing after that date.

Inasmuch as the case does not seem to have been developed upon this point, the decree will be reversed and the cause will be remanded, with directions to the chancery court to allow the minors their statutory right of redemption, and to settle the question of taxes and improvements in accordance with the principles of law above laid down, and for such further proceedings as may be necessary under the principles of equity, and not inconsistent with this opinion.