(dissenting). This court is thoroughly committed to the rule that the State in its sovereign capacity is not estopped to assert claim to its own property by the unauthorized acts of its officers. Woodward v. Campbell, 39 Ark. 580; Pulaski County v. State, 42 Ark. 118; Board of Directors v. Fleming, 93 Ark. 495.
Indeed the force of this wholesome rule is recognized in the opinion of the majority in this case, but its application to the facts now before us is denied upon grounds that seem to me to be entirely untenable. In other words, the majority try to distinguish the line of cases cited above, but I think there is no sound distinction. It is true that in the case of Board of Directors v. Fleming, supra, there existed no right of redemption from the sale to the levee district, whilst in the present case there was a statutory right of redemption from the State, but this does not prevent the application of the rule, for the title to the land had passed to the State under the overdue tax sale, and it was merely a privilege of redemption which Was conferred by the statute, and that privilege could only be exercised after the forfeiture to the State had been certified by an application to the Commissioner of State Lands, and it depended upon an ascertainment by that officer of the applicant’s right of redemption. Kirby’s Digest, secs. 4879-4886.
The right of redemption given under the Overdue Tax Act of 1881 (p. 63) was limited to a fixed period, and was to be exercised by payment to the commissioner who made the sale. In no event were the local assessing officers authorized to perform any act in the redemption of the lands from the overdue tax sale. Their acts in putting the lands on the tax books were, wholly unauthorized, and the State was not bound thereby if any force at all is to be given to the rule on that subject so well established by decisions of this court. Neither is there any place in this case for the exercise of presumptions that the title obtained by the State under the overdue tax sale ever passed out of the State or was in any manner restored to the original owners. The facts are undisputed and are matters of record, and there is no circumstance upon which to build a presumption except the bare fact that the owners continued in possession of the lands after the overdue tax sale and paid taxes thereon. The doctrine of Carter v. Goodson, 114 Ark. 62, does not apply.
In this case it would be a great hardship, apparently, to deprive the original owners of their lands which they have occupied so long, but it seems to me that in order to give them any relief it would be necessary to disregard settled rules of law, and this I am unwilling to do. I dissent, therefore, from the conclusion announced by the majority, and I am authorized to say that Mr. Justice SMITH shares my views on the subject.