Dissenting Opinion by
Sandels, J.On motion to modify decree.
I do not assent to the conclusion of the court upon the motion of plaintiffs below to award them the rents of the lands in controversy, since the filing of their bill. I do not think they ' are entitled to rents until after the decree of the court has adjudged them entitled to redeem, and they have paid the sums adjudged against them.
So much of the record as is necessary to a proper understanding of my position, is as follows:
There were seven heirs of Bender. Two were confessedly barred of their right to redeem. Five of them claimed the right, and sent their attorney to Haynes and Helms to effect the redemption. He offered to each of them (Haynes and Helms) $100 to cover taxes, penalty, costs, etc, on behalf of the “ Bender heirs.” Each refused to accept the sum tendered without assigning any reason for the refusal.
Five of the Bender heirs, soon after, filed their bill to redeem, and, after alleging the tender of $100 to each of the defendants, offered to pay such sums as the court might adjudge against them for the redemption of five-sevenths of the land. By the consideration of this court it was determined that one of the five plaintiffs was not entitled to redeem, and that only four-sevenths of the land was redeemable. It was determined, also, that the sum due to Haynes was $ , and to Helms $ . The sum tendered before the filing of the bill was for the redemption of more land than they were entitled to redeem, and was insufficient to pay for the redemption of that to which they were entitled. It is conceded by the court that this tender was ineffectual for any purpose. It is decided, however, that by the subsequent filing of the bill by five heirs .claiming five-sevenths of the land, and offering to pay such sums as the court might adjudge; and, also, by the filing of the answer denying the right of these plaintiffs to redeem; but insisting that if they were so entitled, the sum tendered them was inadequate, the right of plaintiffs to the rents accrued.
For a long time the right to maintain a bill to redeem without a previous sufficient tender was denied, except when the fraud of the tax-purchaser or officer had presented redemption within the proper time, or when the bill presented other features that brought the case within some distinct head of equity jurisprudence. But the last, as also the greatest innovation, in favor of liberal dealing with delinquent tax-payers, is that they may preserve their right of redemption, by filing a bill without tender at all, where it is difficult to tell what exact sum should be tendered. This saves the right to redeem when the bil offers to pay such sums as are adjudged. But I maintain that the right to redeem does not necessarily carry with it the right to rents. The right to rents depends upon the ownership of the lands.
In cases of redemption, by persons generally, within two years from the sale, the tax-purchaser has only an inchoate right to the land, and is not entitled to possession. He is a trespasser if he takes it. He gets title upon the execution of a deed to him at the expiration of two years. This title is unqualified, except in cases where the delinquent tax-payer is a minor. In that event the tax-purchaser takes the title subject to divestiture by the exercise of the minor’s right of redemption within the statutory period.
From the time of the execution of the tax deed, then, the tax-purchaser’s title is indefeasible except upon the contingencies above stated: the minor paying or tendering the full amount of taxes, penalty, costs, etc. If the sum be tendered before, or at the filing of the bill, the minor upon recovery in the action is entitled to the rents and profits from the time a sufficient tender was made and refused. Why? Because the payment, or the tender, of the full sum due the tax-purchaser operated to divest his title, and from that time he holds wrongfully the plaintiff's land.
But in case the plaintiff offers, generally, to do what the court may adjudge proper, there is no divestiture of the title of the tax-purchaser until the court adjudges the plaintiff’s right to redeem, fixes the amount of plaintiff’s liability, and the plaintiff pays it. The plaintiff may never pay it, in which case there would never be a divestiture. Until such adjudication and payment, the land remains the property of the tax-purchaser, and he is not chargeable with rents for living on his own place.