ARK.] RAGAN V. HENSON. 679 RAGAN V. HENSON. • 4-4302 • Opinion delivered May 4, 1936. TAXATION—R1GHT OF DONEE 4FTER REDEMPTION.—When land sold for taxes is redeemed by the owner, a donee under a donation certificate from the State who has made improvements may, while still in , possession, maintain an action for the value of the improvements, over the objection that the action is premature. Appeal from Miller Chancery Court ; Pratt P. Bacon, Chancellor ; reversed. Shaver, Shaver Williams, for appellant. Will Steel, for appellees.
680 RAGAN v. HENSON. [192 • MCIIAN EY,J.. This is anaction to recover the value of •iMproVements' Made by appellant under a Donation Certificate. )Thd : complaint alleged that the southeast quarter .of. . section 32; in .township 16 south, range 27 west; was ,forfeited and sold to the State in 1927 for the taxes of 1926; that no redemption having been made within the• time allowed by law, said lands were, certified to The State ;.that on the 19th day of July, 1932, appellant. applied for and received from the State Land Commissioner , a donation certificate; that he immediately .entered into the.possession of said lands, began to im-.prove . .and cultivate .same and has since remained in possession ,of said lands, and has placed valuable improvements thereon of the cash value of $1,165, an .itemized statement..of which being attached to the complaint. .He further, alleged that under the provisions of act 2 ot the Special. Session of the Legislature, approved January 8,- 1934, the owners ofthe land theretofore sold foy. taxes , .were granted : the. right to redeem until April 10, 1934; that on the 9th . day . of April, 1934, appellee, -Henson, the,then owner. of the record title to said lands, redeemed the same trom the State ;. that said act so extending the right ot redemption further provides that if a donee.in possession under a certificate of donation ha.s any rights to property by way of 'betterments made, he should be remitted to his rights in the courts; and that although appellee, Henson, redeemed said lands under the provisions of , said act, he has failed, refused and neglected to pay appellant for' the improvements made as aforesaid, which conetituted a just and legal claim and charge against said lands.. He, therefore, prayed judgment for the value of his improvements, and that same. be , declared- a -lien on said lands, and, if not paid, said, land's .. be sold in SatisfactiOn thereof. ... To this complaint ' a demurrer was interposed on two arounds : that it does not state facts , sufficient to g tate a cause of action cognizable in equity under the laws of 'this State; And that it shows that plaintiff is 'still in possession of said lands, and that under the law he can.not maintain said action tintil he has surrendered possession. The court sustained said deinurrefand, upon appellant's
ARK.] RAGAN V. . HENSON: 0._SL declining to plead further, .dismissed the complaint for want of equity. . 'Appellant's action is • baSed . 0-Una:rib ; upon''§ . 10120' of Crawford & Moses' Digest; : . the 'appliCable pOrtiUn.,-Uf which, being . the . laSt elause therein, , WhiCh• reads as fOl;z: lows.: * * fOr inaProVethents Made after tWO' frora the date of sale the ' . ip urchaSer Shall beallOWed" the' full cash Value of • such iniprovementS, and the 'satire be a charge 'upon said land." ; A portion of § 3 of said act No: . 4 of ; the,...Second Special Sessiow,Theld in January, 1934„ page .3 ,.of,.said acts, provides "If, for any reason whatsoever, the sale to the State has: not. been, . certified to thu,State,L00 Commissioner,• redemption: may bergade-,:at„ any , time before.April 10, .1934, from . the county.cleri as , now pr9. vided by law except that no penalty, or rinterest r shall be included, - and, except that, no amount . , in \.addition,to,,tlle taxes due at . .the time, of delinquency and,the-f ee.;herein;- after exacted for the, issuance . of, • the;:certi#cate z;uk., demption, shall be included, in the amount ; to_.be paid„by the person. redeeming; .proyiding ,the words tax at.,:t11. time the same became delinquent, shall; mean the tax due for one year only at the th:ne .of . such delinquency., the event donation of the . land, or , .aay, part,. thereof, sought to 'be: redeemed ,ha,s not been . corapleted ;And., a deed issued and delivered , to the ,donee,;npo,.n :payment to the Commissioner of State. Lands by, the oneHse.ejiing to redeem Of the • donation-certificate feerin addition,to the. amount necessary . to. redeem .,..such (landjroin :fop feiture,. as. provided herein,•the :Commissioner ,of ;State Lands shall, permit said land : to ;be .redeerned 4.10: issue a certificate. of „redemption,' as. provided: by . law, and. shall pay the . donation :certificate ,fee;to.. ..the party entitled .thereto. No pending. .donation . or . entry shall bar redemption; and it shall be •andatoryupon the 00,IP; missioner of State Land.s to issue . a certificate of . rodomp-tion to the one applying therefor, ; aiid if the donee ;or entryman has any rights as to propertyby wayrof.bettor 3nents made by t11.0 donee he . shall;.be . remitted, to,tkis rio thts in the courts:" ; iLifif • '
682 RAGAN V. HENSON. [192 Assuming the validity of that portion of said act No. 2 which authorizes the redemption of land held under a donation certificate from the State, no question regarding its validity being raised by either party, it, will be seen that the provision of the act is that "if the donee or entryman has any rights as to property by way of betterments made by the donee, he shall be remitted to his rights in the courts." The question is : When may the donee assert his action for betterments? Is he required to wait until dispossessed, or has surrendered the possession voluntarily, or may he bring his action at any time when still in possession after his right to acquire title from the State has been taken away from him, without fault on his part, by the action of the owner in redeeming the land? We think the cases relied upon by appellees are not in point as they were actions to try title or right to possession. Such is the situation in Beloate v. State ex rel. Attorney General, 187 Ark. 17, 58 S. W. (2d) 423, and in Wilkins v. May-yard, 190 Ark. 532, 79 S. W. (2d) 1003. Here, neither title nor right to possession is involved. Appellant concedes that appellee not only has the title'but the right of possession. It does not appear that we have ever had a case exactly in point with this. Appellee contends that the action was prematurely brought for the reason that under our former decisions, the value of the improVements made iS• determined at the time of recovery of possession or surrender of possession. We so held in the case of McDonald v. Rankin, 92 Ark. 173, 122 S. W. 88, where we said: "The value of improvements are (is) determined at the time of the recovery, for that is the time they are turned over to, and go into the usable possession of, the holder of the title." In the same case, the court quoted from . Summers v. Howard, 33 Ark. 490, the following: "Such allowances (for improvements) are made upon the ground that the improvements do in fact pass into the hands of the plaintiff as a new acquisition; and they can only be a new acquisition to him to the extent of their value at the time he recovers or obtains possession of them; and, thereNre, their value at that time is to be al-
ARK.] 683 loWed, and nothing more." But this was a case in which the right of possession was involved, and is not in point here. We are of the opinion that § 3 of said act No. 2 above quoted, confers the right upon the donee or entry-man to bring an action for the value of his improvements while still in possession of the land, and we cannot see any useful purpose to be served by requiring him to surrender possession, and then bring an action therefor. The action of the owner in redeeming the land, again assuming the validity of the act, rendered it impossible for the appellant to_acquire title from the-state under—the donation statutes. It might Well be that appellant had not sufficiently improved said land, or to the extent he desired, in order to make it his home at the time the redemption was effected. Any improvements made thereafter would be at his peril, for which no recovery could be had, and . if he were required to wait until appe lee should bring an action to dispossess him, it is not difficult to see that an injustice might be done him. It is not disputed that appellant is entitled to his betterments, whatever they may be, and we are of the opinion that the act above referred to confers an immediate right of action on appellant to recover the value of his improvements. . The decree will be reversed, and the cause remanded with directions to overrule the demurrer, and for further proceedings according to law, the principles of equity, and not inconsistent with this opinion. MEHAFFY, J., dissents.
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.