(after stating the facts). The statute provides that no person shall maintain an action for the recovery of any lands, or for possession thereof, against any person who may hold such land by virtue of a purchase thereof at tax sale without filing an affidavit setting forth that the claimant had tendered to the person holding the lands “the amount of taxes and costs first paid for said lands, with interest thereon from the date of payment thereof and the amount of taxes paid thereon by the purchaser subsequent to such sale, with interest thereon, and the value of all improvements made on such lands by the purchaser, his heirs, assigns or tenants, after the expiration of the period allowed for the redemption of lands sold for taxes, and that the same hath been refused.” Kirby’s Digest, § 2759.
The court erred in instructing a verdict for the ap-. pellee, for these reasons:
(1) First. It is the duty of the circuit court, where the above statute is not complied with, “to dismiss -said action at the cost of the plaintiff.” Kirby’s Digest, § 2760. This statute contemplates that the court shall dismiss the action where the affidavit is insufficient, without submitting the issue raised by the pleadings in the case to the jury. It is a matter that must 'be disposed of in limine. It is erroneous procedure to have the cause submitted on the merits to the jury and then direct the jury to return a verdict in favor of the defendant in the action because the plaintiff has failed to file a sufficient affidavit. The judgment of the court based on the jury’s verdict was not one dismissing the action, but was tantamount to a judgment in favor of the defendant oh the merits.
(2) Second. While the affidavit does not, in form, comply strictly with the requirements of the statute, it does state that Dent, as agent for appellants, had tendered to the appellee all the taxes, interest, fees and costs of improvement made by the appellee, “as required to be tendered before suit filed, and that the said Carrie D. Phillips refused to accept the same, but stated that she would not receive the same, and that it was unnecessary for further tender to 'be made.” We think-the affidavit, taken as a whole, showed that all the taxes, interest and costs of improvements “as required to be tendered before suit filed,” were tendered. This was a substantial compliance with the statute and was sufficient to authorize the appellants to maintain their suit.
In Anthony v. Manlove, 53 Ark. 423, the court, speaking through Judge Hemingway, c«f this statute, said: “There is no wise or beneficent purpose to be aoeomplished by the act which would' justify the extension of its operation beyond its letter; besides, being penal in its nature, it should be strictly construed. ”
The purpose of the lawmakers was to make sure that a person claiming lands held by another under tax title should be 'willing to reimburse the latter for all the sums he had expended on the lands in the event that his title proved defective by reason of irregularities and omissions of the officers making the tax sale. The affidavit under review is sufficient to show that the appellants were willing to do this.
The judgment is therefore reversed and the cause remanded for a new trial.