58 So. 3d 711
Miss. Ct. App.2011Background
- Ferguson purchased 15.5 acres at a 2005 tax sale; Johnson was the record owner.
- Parcel is part of a larger 25-acre tract; 15.5 and 10.36 acres are separate tax parcels; Johnson claims residency in DeSoto County.
- Ferguson obtained conveyance of the 15.5-acre parcel on Sept. 26, 2008; Johnson filed to set aside the sale on Oct. 8, 2008; Ferguson sought to confirm title in a separate action; cases were consolidated.
- Notice of the tax sale was sent to Johnson at 3671 Horn Lake Rd; mail unclaimed; sheriff posted at the property; sale published in June/July 2008; a tax-search affidavit was unsigned and not sworn.
- Chancery court granted Ferguson’s summary judgment in Jan. 2010; Johnson appealed, arguing the notice and affidavit did not meet statutory requirements; the appellate court reversed and rendered for Johnson.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the affidavit satisfy §27-43-3 requirements? | Johnson: the affidavit was unsworn and insufficient. | Ferguson: the affidavit substantially complied. | Uns sworn affidavit invalid; sale void. |
| Did notice procedures under §27-43-3 validly cure the sale? | Johnson contends notice failed to meet statutory requirement. | Ferguson contends notice was adequate despite the unsigned affidavit. | Notice defective; sale void; not cured by publication/other steps. |
| Did the potential due-process concerns require reversal of the sale? | Johnson asserts due-process rights were violated by improper notice. | Ferguson argues procedural defects do not negate the sale if notice procedures are met. | Constitutional due-process concerns moot given void sale. |
Key Cases Cited
- Viking Invs., LLC v. Addison Body Shop, Inc., 931 So.2d 679 (Miss. Ct. App. 2006) (strict construction of tax-foreclosure notice favors landowners)
- Thomas v. Greenwood Leflore Hosp., 970 So.2d 273 (Miss. Ct. App. 2007) (unsworn affidavit cannot create an issue of material fact)
- Rebuild America, Inc. v. McGee, 49 So.3d 156 (Miss. Ct. App. 2010) (unsworn deputy clerk affidavits insufficient to cure notice defects)
- Roach v. Goebel, 856 So.2d 711 (Miss. Ct. App. 2003) (statutory notice provisions strictly construed in favor of landowners)
- DeWeese Nelson Realty, Inc. v. Equity Servs. Co., 502 So.2d 310 (Miss. 1986) (statutory notice and forfeiture procedures governed by statute)