It is true that the duty rested upon the appellant, as life tenant, to pay all general taxes and all special assessments to protect his own interest and that of the remaindermen under 13813 of *Page 215 Pope's Digest and Crowell v. Seelbinder, 185 Ark. 769,49 S.W.2d 389, 83 A.L.R. 789 (where there is an annotation on p. 793). But the majority opinion holds: (1) that a life tenant's estate may be forfeited for failure to pay improvement district assessments; and (2) that the remainderman is entitled to collect rents before taking possession. I dissent from both of these holdings.
1. Forfeiture of the Life Estate for Failure to Pay Improvement Assessments. Our statute (13813, Pope's Digest) in providing for forfeiture of a life estate for failure to pay taxes, does not provide for forfeiture for failure to pay improvement district assessments; and Crowell v. Seelbinder does not hold that an improvement district assessment is a tax. The majority opinion thus writes into the statute words which the legislature did not put there; and the general rule is that a life estate will not be forfeited for failure to pay special assessments in the absence of a statute so providing. In 21 C.J. 971 and in 31 C.J.S., Estates, 65, p. 81, the rule is stated: "A statute providing for the forfeiture of a life estate for permitting a sale for nonpayment of taxes by the life tenant does not apply to a sale for the nonpayment of a special assessment for a local improvement."
In Anderson v. Messenger, 158 F. 250, the United States Circuit Court of Appeals of the Sixth Circuit had before it an Ohio statute like our 13813 of Pope's Digest, and the court there held that the distinction between general taxes and special assessments is universally recognized, and that no forfeiture of a life estate occurred for failure to pay a special assessment of a local improvement district in the absence of a statute so providing. Forfeitures of a life estate are not favored. In 31 C.J.S., Estates, 65, pp. 80-81, there are discussed some of the various acts that were forfeitures at common law, and the reluctance of equity to enforce these forfeitures in the absence of statutes so declaring.
The holding against a forfeiture does not leave the remainderman without relief. The remainderman may discharge the incumbrance and pursue the interest in the life tenant; in other words, in this case, the remainderman *Page 216 could have a lien declared on the interest of the life tenant for the amount of the special assessment discharged by the remainderman, and the lien on the interest of the life tenant could be foreclosed as any other lien. That is the procedure that I think should be followed in such cases rather than the forfeiture as upheld by the majority in this case.
2. Rent Before Possession. The majority opinion has affirmed a decree of the Chancery Court which allowed the remainderman to recover personal judgment against the life tenant for rents in 1941 and 1942 prior to the decree of the Chancery Court adjudging the life estate to be terminated. In 31 C.J.S., Estates, 65, p. 80, the rule is stated: "A forfeiture incurred by a life tenant may be waived by the person entitled to enforce it. The reversioner's right to enforce a forfeiture is merely an inchoate right until decreed by a court of competent jurisdiction." Even if the remainderman had a cause of action, as held by the majority, to forfeit the life estate for failure to pay the special assessment for local improvements, still that was a cause of action that the remainderman could waive; and until the forfeiture was decreed by a court of competent jurisdiction, the remainderman would not be entitled to possession, and certainly should not recover rents accruing prior to the decree for possession.
For these reasons, I respectfully dissent from the majority holding herein.