.69 ARK.1 MORROW V. JAMES. 539. MORROW V. JA.mr,s. Opinion delivered July 13, 1901. 1. Tex Trrix—Wao MAY ACQUIRE.—One who has undertaken and is under obligation to redeem land from taxes can not acquire title thereto at a tax sale. (Page 540.) 2. GUARDIAN'S S ALE— CONFIRMATION.—Where a guardian never reported a sale of his ward's land to the probate court, but four years after the sale the purchaser presented his deed to the court, by which it was approved, neither the guardian nor the ward being present, there was no confirmation oi the sale, and the statute of limitation of five years, •applicable - to judicial sales, would not begin to run. (Page 540.) -3. LIMITATION — REMAINDERMAN — Where land was devised to plaintiff's mother for life, with remainder to the heirs of her body, plain:- tiff's right to recover her interest therein would not be- barred until seven years after her mother's death. (Page 541:) Appeal from Crittenden Circuit Court in Chancery. FELIX G. TAYLOR, Judge. STATEMENT BY THE COURT. This suit is in ejectment by appellant for certain lands described in the complaint. There was judgment for the appellee, from which appeal was taken to this court. The appellant claimed by virtue of the eighth clause of the will of his grandfather, George S. Fogelman, which reads as follows : "Item 8. As to the balance iind remainder of my estate, real, personal and mixed, after paying off my debts and the above specified legacies, I do hereby Will, give and bequeath to mY beloved daughter, Miesissippi Morris, wife of Charles S. Morris, of said county, to be hers during hei natural life, and then to belong 'to the heirs ol her bodY; it being \
540 moiniow V. JAMES. [69 ARK. my intention to settle the same upon my said daughter and the heirs of her body." The appellant is an heir of the body of Mis-sissipi Morris, and: claims one-third Of the land in controversy. ... The appellee answered, denying the title of the appellant, ani setting up title in himself. He alleges that the interest of the appellant, was sold by her guardian, under orders of the probate court of Crittenden county; that he was the purchaser; and that the sale was approved by said court. He next alleges that appellant had no interest in the land to be sold; that, under the will, Mississippi Morris took an abdoluté estate. The answer relies upon seven years' adverse possession, and avers that the Purchased 147 acres of frattiedal SectiOn three, on NoVember. 3, 1879, and the balance of , said section on June 30, 1880, under tax sale, and avers that he has had adverse possession since said dates. .Pleads the statute of limitations of seven years, of five years and of two years.. The answer also alleges that after the appellant became of age she ratified and confirmed the sale of said lands as made by her guardian, B. L Olmstead. Norton & Prewett, for appellants. The order of confirmation is void as to appellant, because the record shows that neither she nor her guardian was before the court. 1 Black, Judg. § 242; 55 Ark. 562; 56 Ark. 419; 2 How. 43. F. E. Heiskeil, of Tennesded, fcitappellee. As the lands were not purchased at tax sale, the defendant is protected by the statüté of limitations of five years. Sand. & H. Dig., § 4818; 53 Ark. 400; 60 Ark. 167; 72 Ia. 24 75' Ia. 253. The order of the probate court is not open to such collateral attack as is here attempted. HII4HE -S, 1., (after stating the facts;) We are Of the opinion that there is no sufficient evidence' to show that appellant had ratified and Confirmed the'sale of her interest in the land in controversy by OlmStead, her guardian. We think that the record shows that appellee undertook and was obliged to redeem the land froth taxes, and could nOt therefore set up the tax purchase in bar of plaintiff's right of action. Before the statute of limitations of five ydars conld apply, there must have been confirmation of the, sale inide under the order of the probate court.- Without confirmation, there was no sale.
69 ARK.] 041 2faxwell v. Campbell, 45 bd. 360; Tilman V. Rickor, 43 N. J. Eq. 122; Mulford v: Bevcridg.e, 78 111 455; McVey v. McVey, 51 Mo. 406; Watts y. Cook, 24 Kan 278; Flemming v. Roberts, 84 N. C. 432; Wells v. Rice, 34 Ark. 346; and Arkansas cases passim. It appears that no report of the sale was made by the guardian; that about four years after the sale Stephen James, the purchaser, presented to the court the two deeds made to him by the guardian, lind asked their approval; and that the deeds were approved by order of the probate court. Neither the guardian of appellant nor appellant herself was present, or was represented in the court at the' time, as the record shows. Wherefore there was no con--firmation of the sale, and therefore no sale. The statute of limita--tions" of five years could not apply, because there was no sale. Mississippi Morris, appellant's mother, had a life estate in these lands, and she died in November, 1885. This suit was brought to the July terra of the court for 1889, about three years and eight months after the death of appellant's mother, when the right of appellant ac,crued, the life estate being then determined It follows, therefore, that the seven year's afatute of limitations had not barred the appellant's right .of action when her suit was commenced. The judgment of the lower ,court is reversed, and the cause is remanded for a new trial. The appellee should be allowed to7 any amount he paid to redeem the land from taxes.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.