No. 35900. | Miss. | Jun 11, 1945
Lead Opinion
This is an appeal from a final decree of the Chancery Court of Marion County, whereby the tax title of appellee to certain described lands in said county was quieted and confirmed in her. The defendants were appellant, and her brother, since deceased, of whom appellant is claimed to be the sole heir at law; and the State of Mississippi, pursuant to Chapter 309, Laws 1940, and "all persons having or claiming any legal or equitable interest in and to" the land in controversy. Appellant and her brother answered, and contested the suit. The state filed its conventional answer.
Several errors have been assigned by which the decree of the trial court is attacked as erroneous, but we do not agree with appellant that the matters of which complaint has been made were error. Furthermore, in our opinion only one of the assignments of error is serious enough to merit discussion, which is thus set out by the solicitor for appellant:
"The Court erred in admitting in evidence, over the objection of appellant, the tax collector's original list of the alleged tax sale." *620
The land was sold, pursuant to an order of the board of supervisors fixing the date therefor, on October 30, 1933, for the unpaid taxes of 1932, which were assessed to Mrs. Ben Foster, the widowed mother of appellant and her brother. The land was sold to the State of Mississippi, and was not redeemed.
On April 13, 1943, the state issued a tax forfeited land patent to appellee, who, on June 8, 1943, filed this suit, praying for the quieting and confirming of her title to said lands pursuant to the said tax forfeited land patent.
The historical review of the sheriff's part as tax collector in sales of lands for delinquent taxes, made by solicitor for appellant, is very interesting, but this Court recently held that such lists of tax sales are conveyances. Seward v. Dogan,
The list transmitted to the chancery clerk contained this certificate: "I, O.J. Foxworth, Sheriff and Tax Collector in and for said County and State do hereby certify that the following is a correct list of Lands sold to the State on The last Monday and the 30th day of Oct. 1933, for delinquent taxes due thereon, for the fiscal year 1932 pursuant to the requirements of law." *621
It is argued that since the sheriff nowhere signed this certificate, and that since his name was written therein at the beginning thereof following "I" by the then chancery clerk, and not by the sheriff and tax collector, the list was fatally defective, or, in effect, was no list transmitted to the chancery clerk by the sheriff and tax collector. Consequently, the title of the state is attacked as null and void, with the claim that for this reason also the state's patent to appellee was void, and she received no title thereby.
In our judgment, the Legislature, in amending the previous statutes, dealing with the subject, by Section 3256, Code 1930, Section 9936, Code 1942, intended to avoid previous court decisions contrary to the provisions of the amendment, as follows: "but a failure to transmit or record a list, or a defective list, shall not affect or render the title void." The entire scheme of selling lands and conveying title thereto, in dealing with the sale thereof for delinquent taxes, is statutory, and we may concede that the above certificate is defective, and we may go even further, and concede that the list was not certified, but when this is done, the decision of this Court in Lear v. Hendrix,
We quote the following from that decision: "It is argued further that the city's title was void because the lists of lands made and filed by the city tax collector was not properly certified as required by law. The record shows it was not certified but that in all other respects the law was complied with. Section 3256 of the Code chapter provides, among other things, that the lists shall vest in the purchaser a perfect title and a `failure to transmit or record a list, or a defective list, shall not effect or render the title void.' There is no contrary provision in the ordinances. The statute therefore controls. It was held in Roebuck v. Bailey,
Since the chancery court reached the same conclusion and adjudged the appellee to be the true, legal and equitable owner of the land, and quieted and confirmed her title thereto in consequence, the decree of the lower court will be and is affirmed.
Concurrence Opinion
However, approximately six years have intervened since the decision was rendered in the case of Lear v. Hendrix, during which time many thousands of acres of land forfeited to the state for taxes have been patented to individuals, and doubtless many investments made in reliance upon the validity thereof, making it necessary *626 that we should now adhere to that decision where vested rights acquired on the faith thereof are involved, and in other cases, unless we are able to say that it is so manifestly wrong and mischievous in its operation as to require that it be overruled.
If the case at bar was one of first impression, I think that the decision herein should be that the statute in question does not cure the failure of the sheriff and tax collector to make and certify the list, as applied to lands sold to the state for taxes, but that it should apply only to a failure to transmit or record the list which he has made and certified, even though the same may be otherwise defective, including his signed certificate thereto.
For the reason hereinabove stated, I concur in the result reached by the main opinion herein.
Concurrence Opinion
In Lear v. Hendrix, supra, the title of the appellee therein was based on a sale of the land to Yazoo City for municipal taxes due thereon. Under the governing statute the procedure by the city tax collector in selling land for municipal taxes is that required of the sheriff in selling land for state and county taxes, and the only evidence required or recognized by the statute for the sale of such land to a city is a list thereof made and certified to the chancery clerk by the city tax collector, identical with the certificate to be filed with the chancery clerk by the sheriff when he sells land to the state for county and state taxes. In that case, according to the Court's opinion, the list of sales of land to the city for municipal taxes "was not certified," but the Court held that this did not void the city's title, under the saving clause of Section 3256, Code 1930, now Section 9936, Code 1942. The only reason given therefor was that it was so decided in Roebuck v. Bailey,
In the Roebuck v. Bailey case the Court held "that the failure of the tax collector to sign and certify the tax list did not invalidate the tax sale," for the reason that the receipt issued to the individual tax purchaser under Section 3254, Code 1930, evidenced his purchase of the land. This evidence of the sale to the state or a municipality of land at a tax sale is neither authorized nor recognized by any statute, and therefore Roebuck v. Bailey does not support Lear v. Hendrix — consequently Lear v. Hendrix does not support the majority opinion here. Moreover, such a receipt, even if it could be of any efficiency here, does not appear in this record.
I am afraid that the approval here given Lear v. Hendrix will return to plague us, and will result, under Section 1739, Code 1942, which provides that "the list of lands sold to the state at such sale, shall be prima facie evidence that the assessment and sale of the land were legal and valid," in landowners losing their land to the state under claimed sales for taxes which were never made legally if made at all.
Lear v. Hendrix, supra, on which the opinion of the majority rests was decided as recently as 1939, is not based on any reasoned construction of the statute but solely on an erroneous construction of Roebuck v. Bailey, supra, is without the support of any later decision, and is so manifestly erroneous and mischievous that it should be overruled. This, however, would not result in a reversal of the decree of the court below for the reason that while the state's title to this land rests on an alleged sale made to it prior to 1939 the appellee's title rests on a conveyance of it by the state in 1943, and the rule is that the overruling of a prior decision does not affect vested rights acquired under it while it was in force. Bank of Philadelphia v. Posey,