dissenting. I respectfully dissent because I believe that the majority makes both mistakes of fact and mistakes of law. Regarding their mistakes of fact, the majority asserts that the appellants’ pleadings imply that Earl Campbell was “incapacitated.”1 There are no facts in the record, save for the fact that he resided in a nursing home, to support this assumption. At any rate, it should have no bearing on how this case is decided except that this otherwise insignificant piece of data seems to draw this case more completely within the loose language of Tarrence v. Berg, 202 Ark. 452, 150 S.W.2d 753 (1941), which I believe the majority wrongly concludes is dispositive. The appellants argue in their brief that Tarrance actually supports their case, and I agree. A brief recitation of the facts in Tarrance illustrates this point.
Ben Tarrence owned certain lands in Ouachita County when he died intestate in 1892. The property was “forfeited for taxes” the same year that he died. The land was sold for taxes in 1893. Will Tarrence was the oldest of Ben’s heirs, and he was incompetent by reason of insanity. Nonetheless, Will married and fathered five children. Will himself died intestate on September 23, 1916. Will’s youngest child, Herman Tarrance, was born on June 2, 1917. On May 6, 1940, Herman filed suit, seeking to redeem the property that had originally been forfeited by Ben. In affirming the trial court’s dismissal of the case, the supreme court stated:
Will Tarrance was insane, and under the statute he had two years after the removal of his disability to exercise his right of redemption. His heirs had the right under the statute to redeem within two years after his disability was removed by death, and they could not tack the disability of minority to that of the father and thereby extend the statute.
202 Ark. at 456, 150 S.W.2d at 75.
In the instant case, Earl Campbell’s death corresponds to the demise of Ben Tarrance, and appellant Richard H. Givens, as guardian of two incompetent heirs stands in the shoes of persons who occupy a position analogous to Will Tarrance, who inherited the property after his father allowed the property to go into default. The fact that the majority makes this fundamental mistake of fact leads them to apply the wrong precedent, or more accurately, apply the right precedent wrongly.
Furthermore, the supreme court in Tarrance stated that the “right to redeem descends to the heir of the person who had the right to redeem.” 202 Ark. at 454, 150 S.W.2d at 754. I believe that this holding is completely in concert with another supreme court case, Chambers v. Burke, 194 Ark. 665, 109 S.W.2d 117 (1937), which held that when a minor succeeds to his father’s right to redeem forfeited land, the statutory protection afforded under what is now codified as Arkansas Code Annotated section 26-37-305 attaches to his right to redeem. In the instant case, the disability is different, but the principle is the same.
The fact that the appellee in Burke acquired the right to redeem by a means different from the case at bar is of no moment. It is well settled that the right of redemption is not an estate or interest in the land, but an “absolute” statutory privilege to defeat the tax title within a limited time. Rinke v. Schuman, 246 Ark. 976, 440 S.W.2d 765 (1969). As to the nature of the statutory protections at issue here, it should be self-evident that the privilege to redeem cannot have a disability — only the persons entitled to exercise that privilege can.
I cannot ignore the fact that here, the persons who have the right to redeem are two African-Americans who have been adjudged to be mentally incompetent, and the prevailing party in this case is Haybar, Incorporated, a business owned by a prominent Little Rock attorney, that apparently specializes in picking up bargains at tax sales. I find it ironic that the statutory protections afforded incapacitated persons under Arkansas Code Annotated section 26-37-305 are directly descended, virtually unchanged, from among the oldest acts of our legislature that are currently in force and that long ago our supreme court determined that “statutes providing for redemption from tax sales always receive a liberal construction.” Woodward v. Campbell, 39 Ark. 580 (1882). The majority ignores the clear mandate to protect our most vulnerable citizens. Therefore, I respectfully dissent.
I am authorized to state that Judge Crabtree joins in this dissent.
We cannot say whether or not Mr. Campbell was incapacitated because Judge Sims inexplicably denied the appellant’s request to put on proof of incapacity at the hearing.