Mrs. Worthen brought ejectment in the Pulaski Circuit Court against Ratuliffe and wife and Ered. Hanger, for forty acres of land. Her title is derived by inheritance from her son George, who in his lifetime held a donation deed from the State, executed in the year 1858, and based upon a forfeiture for the non-payment of taxes for the year 1840. This deed had been confirmed in 1861, by decree of the Pulaski Chancery Court.
The defendants exhibited a chain of title connecting themselves with the original patentee of the United States, attacked the forfeiture for taxes as erroneous, and set up sundry equitable defenses. On their motion the cause was transferred to the Chancery Court, where it was consolidated with a suit there pending involving the same subject matter, in which Ratclifte and wife were plaintiffs and Mrs. Worthen and the brothers and sister of G-eorge Worthen, deceased, were defendants. This last mentioned suit was in the nature of a bill of review to vacate the decree of confirmation of the tax title and to restrain the prosecution of the action of ejectment until the matters in the bill could be heard and determined.
This bill alleged that the plaintiffs’ grantors were in actual adverse possession of the land at the date of said donation and of the decree of confirmation ; that this fact was known to the father of the donee, who procured the donation for said infant, and the confirmation of his title; that, notwithstanding, they were not made parties to that proceeding, no process was served upon them, nor did they appear, but the application was entirely ex parte, only the statutory notice for publication in a newspaper having been given. Further, that there were improvements on the land at the time it was donated, belonging to those under whom the plaintiffs claimed, and that double the value of those improvements never having been paid or tendered to the owner within three months, according to the condition annexed to the donation,' the deed itself became void and the estate never vested. And that the concealment of the adverse occupation, of the existence of improvements, and of the failure to pay for the same, was such a fraud upon the jurisdiction of the court, as well as upon the rights of the parties adversely interested, as to render the decree of confirmation a nullity.
The answer to the bill put in issue the cultivation of the soil, the ownership of the improvements and the possession of the plaintiffs’ grantor at the date of the donation. There was no pretense that the donee had ever paid any one for the improvements.
The Chancellor canceled the donation deed for failure to pay for improvements, and set aside the confirmation for fraud.
The cause was heard upon documentary evidence, the deposition of Peter Hanger and the following agreed statement of facts:
“ It is agreed that the following statement in connection with the pleadings and other proofs shall be taken as the testimony in the above entitled cause, as though fully pleaded and proven.
“ That the said George Worthen was born on the seventeenth day of October, 1858, and that the said Louise B. Worthen, R. W. Worthen and W. B. Worthen and Lizzie Agee are his only heirs, he having died November 4, 1879, intestate and unmarried; that the said Maggie M. Ratcliffe and Frederick Hanger have a regular chain of conveyances from the United States to the said land, to wit, the southeast quarter of the northwest quarter of section thirty, township one north, range eleven west, in Pulaski County, Arkansas; the United States having conveyed her title to one James B. Keats, May 16, 1836, who conveyed, April 4, 1837, to Seaborn Hill, who died about the year 1844, leaving an heir, who afterwards intermarried with F. H. Moody, and conveyed the said land April 27, 1857, to Peter Hanger, and so on down to the said Maggie M. and Frederick; that the said James B. Keats was, in 1840, a resident of Pulaski County, Arkansas, and the said Seaborn Hill was, at the time he purchased said land, a non-resident of Pulaski County, and so remained until his death, in 1844; that the said land had been occupied and partially improved prior to the year 1857, but same had been abandoned and unoccupied until April, 1857, when same was in actual possession of the grantors of said Maggie M. and Frederick, and has been actually occupied by their grantors and themselves ever since; that neither George Worthen nor his heirs herein named were ever in actual possession of said land or any part thereof; that the said land was returned into the Auditor’s office as forfeited to the State of Arkansas, for the alleged non-payment of taxes for the year 1840, and was offered for sale by the Auditor in 1840 ; that the same was reported unsold, and returned into his office as land subject to donation ; that the same was ‘donated’ by Caleb W. Mills, November 29, 1855, and the same relinquished by him to the State, he failing to make improvements, and re-donated by said Caleb W. Mills, May 6, 1857, and after-wards there was entered opposite said latter donation on the Auditor’s books the words ‘adult; reverted.’
“A donation deed was then executed to George Worthen under the same alleged forfeiture of 1840, said deed bearing date November 29, 1858; that the improvements placed on the said land from May 6, 1857, to November G, 1858 (the time of last donation by Caleb W. Mills), to the time at which the eighteen months in which he had to make improvements thereon, were made by F. II. Moody and Peter Hanger, who at that time held said land by conveyance from original owners as purchasers from the United States Government; that the said Caleb W. Mills did not make any improvements thereon during the said time in his own proper person, nor did he hire any work done thereon, nor did he expend or lay out any money for said improvements ; that the said Caleb W. Mills, on January 15,1858, quit-claimed his interest in the said land by deed to E. IT. Moody above-named as one of the grantors of the said Maggie M. and Frederick; that the improvements on the said land at this time, to wit, on the twenty-niuth of September, 1882, are worth the sum of §5,000, and were placed thereon by Maggie M. and Frederick, or their grantors, before suit was instituted by said Louisa B. Wor-then in Pulaski Circuit Court.
“The records in the office of the county clerk of Pulaski County show that the southeast quarter of southwest quarter of section thirty (30), township one (1) north, range eleven (11) west, appears on the non-resident list of lands not given in for taxes, and therefore taxed in the original owners’ names for 1840, filed in the clerk’s office September 15, 1840, taxed in the name of James B. Keats, and does not appear on the assessment list for the county of Pulaski, filed March 25, 1840 (and only appears as assessed for 1840 as above.)”
The deposition of Peter Hanger is in the following words:
“I am acquainted with the tract of land in controversy herein, to wit, the southeast quarter of northwest quarter of section thirty, township one north, range eleven west, and I know the boundary thereof. It is known as part of the Seaborn Ilill land, and was owned on April, 28, 1857, by Mrs. Moody, the only child and heir of Seaborn Hill, At that date I purchased same from F. H. Moody and wife. At the time I purchased there was an old orchard on the spot and adjoining where the dwelling house now stands, or near it. Also there was across the bayou on the same tract, a small clearing of six or seven acres, which had grown up in cottonwood trees. I immediately made a pole fence around this out of the small cottonwood, inclosing the whole six or seven acres, and, I think, raised a crop thereon during the year. I commenced improving the place at this time, and worked on same continuously after this. A small house was on the ridge near where the dwelling house now stands and was occupied by one Harris, who is now dead, and- also another house was built some time, either fall or winter, 1857, and was in the spring of 1858 occupied by "William IT. Brown, who is also dead. In December, 1857, I sold one-half of this tract of land to F. H. Moody, and we commenced work at this time in partnership. A mill was purchased in March, 1858, in St. Louis, and was set up under the superintendency of W. IT. Brown, on the forty acres adjoining, about thirty yards below the line of this tract. It may be not so far. We cultivated during the year 1858 the six or seven acres heretofore inclosed, and commenced clearing at other points on the same tract. In the fall of 1858 we bad considerably more land ready for cultivation.
“I get the exact dates from deeds of record in my possession. Hp to November 1, 1858, there were two houses on said forty acres and some ten acres or more in cultivation, and other lands deadened — say some three hundred ($300) to five hundred ($500) dollars’ worth of improvements. I went into possession of said lands in the spring of 1857 and remained until sold in the year 1868. I never had any notice of any proceedings to confirm tax title, or of any claim of any other person for the said lands. My possession during said time was quiet and undisturbed.”
The objectiou to the forfeiture for taxes was that the land was assessed for the year 1840 in the name of James B. Keats, a resident of the county, instead of Seaborn ITill, the actual owner, who was a non-resident, and that, notwithstanding its taxation in the name of a resident, it was put upon the non-resident list and proceeded against accordingly. The revenue law then in force made considerable difiez’ence between the lands of residents and non-residents of a county, especially in the mode of enforcing the payment of taxes by compulsory sales. But it was expressly provided that “no sale of any land for the payment of taxes shall be considered invalid on account of its having been charged in the tax book in any other name than that of the rightful owner, if such lands be in other respects sufficiently described in the tax book, and the taxes for which the same is sold be due and unpaid at the time of such sale.” Rev. Stat., ch. 128, sec. 99.
In Merrick & Fenno v. Hatt, 15 Ark., 331, this same assessment of Pulaski County for 1840, was involved. There the land had been assessed twice; once on the resident list, to the true owner, and again in the name of a nonresident, who had no interest in it. The taxes were not paid by any one, and the land was proceeded against as the property of a non-resident, and was forfeited as such.
This court said: “ The name of the owner is comparatively unimportant. The description of the land in such manner as that it may be identified, and the non-payment of the tax, are the two considerations of the most importance in a tax sale. The particular land taxed stands liable for it, no matter who may be the owner or into whose-soever hands the lands may pass;” and the forfeiture was upheld.
The same point was adjudged in Kinsworthy v. Mitchell, 21 Ark., 145, followed by Garabaldi v. Jenkins, 27 Ark., 453. And in Gossett v. Kent, 19 Ark., 602, it was decided that when the assessor returns his list, and the process of assessment is completed by the action of the county court, the condition of the land as being the property of residents or non-residents becomes fixed for the purpose of taxation for that year.
In the present case the land, having been entered in 1836, was subject to taxation. It was assessed for taxation and it is immaterial in whose name the assessment was, or whether it was placed on the resident or non-resident list, provided the proceeding was consistent, and the subsequent sale followed the assessment. The taxes remained unpaid, and it was properly forfeited.
1. Confirmation of donation title: Effect of. 2. Same: Possession at time of the confirmation.This conclusion is reached independently of the decree of confirmation.
But, in truth, every question with respect to the assess-meQt of the land in controversy, or the non-payment of taxes, or the regularity of the proceedings of the sheriff and collector, is concluded by that decree; provided the court which rendered it had jurisdiction of the petition, and provided the decree was not obtained by a fraudulent misrepresentation or concealment of facts. Thomas v. Lawson, 21 How., 331; Buckingham v. Hallett, 24 Ark., 521.
It is contended that no effect should be given to this confirmation, because the land was at the time adversely held. It is perhaps unfortunate that this relief has not been confined to purchasers who were in the actual or constructive possession of the lands purchased. The statute does but apply an old chancery remedy to a ease special in its form. It is, in substance, a bill of peace. (Overman v. Parker, 18 How., 137.) And in other respects the proceeding is governed by ordinary rules of chancery practice. Payne v. Danely, 18 Ark., 441.
This view derives suppoi’t, too, from the language of the statute. Its scope and design appear to be to protect purchasers at sheriffs’, Auditor’s and judicial sales, from eviction, or from any responsibility as possessors. Gantt’s Dig., sec. 786.
But the statute does not, in so many words, say that the petitioner for confirmation must be in possession, or else the land be unoccupied, in which case the legal title might be considered as'drawing the constructive possessions to its holder. Nor has this construction been heretofore adopted. The petition has been assimilated to a proceeding in rem, where the jurisdiction of the court over the controversy is founded on the presence of the property, and the decree becomes conclusive as well against the absent claimant, as against any who may intervene and contest the petitioner’s rights. And the adjudication has been without any reference to or effect upon the possession. Block v. Percifield, 1 Ark., 472; Evans v. Percifield, 5 Ib., 424; Bonnell v. Roane, 20 Ib., 114; Moses v. Hawkins, 22 Ib., 550; Scott v. Watkins, 22 Ib., 556.
It was also contended that the donation deed to George "Worthen became void because the donee did not comply with the conditions annexed to his estate.
This point also is not open to contestation if effect is to be given to the decree of confirmation, because it is a matter that might then have been litigated.
It is therefore necessary to consider whether any fraud was committed in procuring that decree. One of the conditions upon which the grant was made is set out in the act of January 11, 1851.
Section 1. Be it enacted by the General Assembly of the State of Arkansas : That as the present laws provide that if any individual should obtain a donation to a tract of improved land, he or she shall pay to the person or persons owning such improvement double the value thereof, but as no time is now fixed by law within which such payment for said improvement shall be made, it shall be the duty of each and every person who has obtained a donation to a tract of improved land, within three months after the passage of this act, or within three months from the date of the deed, to pay to the owner of such improvement double the value thereof, and take from such person his or her receipt for the amount of money so paid, which receipt shall within thirty days thereafter be filed with the Auditor; and should any such improvements not he paid for by the donee within the time prescribed, such donee shall forfeit all right to the land which had been donated, and the owner of such improvement, upon filing with the Auditor his affidavit, stating that he owned an improvement on the land at the time it was donated, and that the donee has not paid or tendered to him double the value of such improvements, if the time for making such payments and for filing the receipt as evidence thereof shall have elapsed, shall be allowed to purchase said land including his improvement, by paying all arrearages of taxes which may be charged thereon, in the same manner as if the land had never been donated, and the Auditor shall execute to such purchaser a deed for the land so purchased, etc.
3. Infant donce must pay for improvements. 1. Improvements: Who is the owner of.The two previous donations of this land to Caleb W. Mills had been canceled by the Auditor for failure to make the improvements which the law required of an adult. Worthen, as an infant, was exempt from the duty to improve ; but not from the duty to pay the owner double the value of his improvements. Lacefield v. Stell, 21 Ark., 437.
And the owner of the improvement, within the purview of the statute, is he who has made it. If made before the forfeiture, the former owner of the land owns also the improvements. But improvements made subsequently to the forfeiture, whether by the former proprietor or by a stranger who had no interest in the soil, are also protected. (Surginer v. Paddock, 31 Ark., 528; Simpson v. Robinson, 37 Ib., 132.) Peter Hanger was the owner of the improvement in this case, and Worthen never paid or offered to pay him for it. The State might have re donated the land to Hanger upon the filing of the prescribed affidavit of non-payment.
But Hanger and those claiming under him have been ignorant of Worthen’s claim. This is evident from their conduct in not applying for a re-donation and in erecting expensive improvements; and the act of January 11, 1851, was repealed by the act of March 14, 1879.
5. Payment for improve-ments: Condition subsequentWhat, then, is the effect of Worthen’s non-compliance with the condition annexed by law to his grant and referred to in his deed ?
If the payment of double the value of the improvements within three months was a condition precedent, then the estate never vested in him, and not oven a court of chancery can relieve from the consequences of nonperformance. But if the act required to be done is not to precede the vesting of the estate, but may as well be done afterwards, the law permits the estate to endure after breach of the condition, however absolute the words of forfeiture may be, until the grantor, his heirs or successors, enters and avoids the estate.
Now, Worthen’s deed contained words of present grant, and he was given three months within which to pay for the improvements. This is a condition subsequent. The deed imports an immediate transfer of the title and vests the fee simple of the estate in the grantee, subject to be defeated by a neglect or refusal to perform the conditions. 2 Black. Com., *153, et seq.; 4, Kent’s Com., *123, et seq.; 2 Washb. Real Prop., chapter on Estates upon Condition; notes to Dumpors case, 1 Smith’s Lead. Cases, 5th Am. ed., 97, et seq.
A reference to a few adjudged cases will make this plain. There is Sneed v. Ward, 5 Dana, 187, where a grant of land made by royal authority in 1872, reserved an annual quit rent in fee and required certain improvements to be made within three years, and declared that for a failure -to make the improvements and pay the rent, the estate should ipso facto cease and determine. These were held to be conditions subsequent, and the patent vested the title immediately.
6. Confirmation obtained by fraud.In Schulenberg v. Harrisman, 21 Wall., 44, Congress had granted public lands to the State of Wisconsin to aid in the construction of railroads in that State.
The language of the act was “that there be and is hereby granted to the State of Wisconsin” the lands specified.
The lands were to be subject to the disposal of the State Legislature, and it was provided in what manner sales should be made. And it was enacted that if the road be not completed within ten years no further sales should be made and the lands unsold shall revert to the United States. The State accepted the grant 'upon these terms, but the road was not constructed within the period prescribed, and it was held that the act passed the title, which remained unimpaired in the grantee, notwithstanding the non-performance of the subsequent condition, no action having been taken either by legislation or judicial proceedings to enforce a forfeiture. In Underhill v. Saratoga R. Co., 20 Barb., 455, the grant was upon condition that the grantee should build and maintain a water-tight embankment over a certain brook crossing the land conveyed, and that said embankment, with the flood-gates and sluice-ways therein, might be used for hydraulic purposes by the grantor, their heirs and assigns. The railroad company, immediately after the execution of the deed, entered into the possession of the land, but never constructed the dam. In an action by the assignee of the grantors to recover possession of the lands, the condition was held to be a subsequent one. See also Ruch v. Rock Island,, 97 U. S., 693.
The papers in the confirmation proceeding have been ^ost> ao<^ ^ imPossiMe t° ?ay what allegations the petition contained. Rut it must either have alleged that there were no improvements on the lands, or that double the value of them had been paid to the owner, or, as is more probable, have said nothing on the subject of improvements. For it is not to be supposed that any court would have confirmed Worthen’s title with a knowledge that the condition upon which it was held had never been performed. Now, whatever course was pursued by or for the petitioner in this respect, the confirmation could not have been obtained without the suggestion of a falsehood or the suppression of the truth, and it is no answer to say that Worthen was then an infant.
Infancy no excuse for fraud. 7Chancery Practice: Relief against conditions subsequentInfancy furnishes no excuse for fraud, and is no protection from relief sought against it, whether committed by the infant himself, or by others for his benefit.
However, a court of equity will never lend its aid to destroy an estate for the breach of a condition subsequent, but will relieve against the consequences wherever the case admits of a certain compensation in damages, as where the condition is to pay money. It regards conditions as mere remedies to enforce the fulfillment of obligations and will not allow them to be perverted from their purpose either on one side or the other. Thus, where a testator devised an estate to his two sons, they paying to each, of his two daughters a certain sum within one year after his decease, and the money was not paid within the time prescribed; on.ejectment brought by one of the daughters for her undivided one-fourth share.of the land, as one of the four heirs of her father, it was held she was entitled to recover; because to entitle themselves to the estate the sons must have performed the condition strictly. But after-wards the sons tendered the money and applied to a court of equity for relief against the legal effect of the condition broken, and they were allowed to regain their title to the estate, which had been forfeited at law by non-performance of the condition, upon payment of the money and interest. Wheeler v. Walker, 2 Conn., 196; Walker v. Wheeler, Ib., 299.
Vested right in improvements not divested by repeal of the law.The repeal of the act of 1851 does not cut off Hanger’s vested rights to be paid double the value of his improvements.
And Mrs. Ratcliffe and Fred Hanger holding under conveyances from him, which carried not alone the land, but the improvements upon it, must be deemed to have succeeded to his rights in the premises.
’ Nor is the lapse of time any just impediment to the working out of the respective rights and equities of these parties. Laying the decree of confirmation out of the case, it would be a sufficient answer to the action of ejectment to say that Worthen had not performed the condition attached to his estate within the time limited by law.
If now a court of equity relieves his heirs from a forfeiture by dispensing with the literal performance of the condition, it will do so- only upon the condition of doing justice.
The decree below is affirmed so far as it vacates the decree of confirmation ; but in so far as it cancels the donation deed it is reversed, and a decree will be entered here, enjoining the heirs of Worthen from prosecuting any action against the assignees of Peter Hanger, until they shall pay into this court for the' benefit of Mrs. Ratcliffe and Fred Hanger, double the value of the improvements, say $800 with six per cent, interest from the twenty-eighth day of February, 1859, until paid.
And upon such payment the cause will be remanded to the Pulaski Circuit Court, there to proceed as an action of ejectment, with laave to the defendants to set up the im-' provements made since the twenty-eighth day of February, 1859, under the betterment act of March 8,1883, if they shall be so advised. The appellants must pay all costs below, but will recover their costs in this court.