Ju this case, the defendants, other than Mrs. Sandford had interposed demurrers. The demurrers were heard and overruled, with leave to defendants to plead or answer as they were advised. 99 Eed. 154. Ail of the defendants have answered. Mrs. Julia B. Easterling, one of the defendants who had demurred, now disclaims. She produces in evidence her deed, executed 26th September, 1898, and duly recorded 12th December, 1898, whereby she conveyed in fee all her interest and ('state in this laud to E. B. Easterling, for $500. The cause, being at issue, was referred to a special master to report the testimony. His report lias been filed, and a full hearing has been had. The bill is filed for the foreclosure of a mortgage executed by Mrs. Mary E. Sandford io the Commercial Bank of Augusta on 7th May, 1896, to secure the sum of $2,500. This mortgage was duly recorded in the proper office on 11th May, 1896. The debt hears interest at the rate of 8 per cent, per annum. The principal sum, with interest from the 4th November, 1897, is due and unpaid. The contract provides for the payment of the debt and interest, and commissions of 10 per cent, if the claim be put in the hands of an attorney for collection. As against Mrs. Sandford, the complainant is entitled to a decree for $2,-500, with interest at the rate of 8 per cent, per annum on the principal sum, and for 10 per cent, additional on the amount due as commissions. and,. in default of payment, to a decree for foreclosure and sale. The only litigated questions are between complainant and the other defendants. After the execution and record of the mortgage, a tax was levied in Elko graded school district, in which tills land lies, for the purposes of a graded school. Mrs. Sandford having failed to pay any tax on this land for the fiscal year beginning January 1, 1897, a tax execution was issued against her for all stale and county taxes and for this school tax for Elko graded school
The vital questions in this case are the validity of the school fax. the validity of the levy under the tax execution, and the validity of the sale, and of the conveyance made thereunder. It must he borne mind that the legislation now under discussion is not remedial legislation. In all such cases, courts labor to arrive at the beneficial intent of tbe legislature, and seek to secure it full effect. Com. v. Kimball, 24 Pick. 370, and cases collected in 23 Am. & Eng. Enc. Law, 309, 362, and 24 Am. & Eng. Enc. Law, 358. We are construing statutes imposing taxes and burdens on tbe taxpayer. In all such cases the rule is changed. “The highest power that a sovereign — ■' the lawmaking power — can confer is the power to tax. Every act conferring that power must express it plainly, and the act so expressing it must be strictly construed.” Suth. St. Const. 459.
In every case of doubt, such a statute is construed against the government. U. S. v. Wigglesworth, 2 Story, 369, Fed. Cas. No. 16,690. Lord Cairns, in Partington v. Atty. Gen., L. R. 4 H. L. 100, 122, says:
“As I understand tbe principle of all fiscal legislation, it is this: If tbe person sought to be taxed comes within tbe letter of tbe law, be must be taxed, however great tbe hardship may appear to tbe judicial 'mind to be. On tbe other baud, If the crown, seeking to recover tbe tax, cannot bring tbe subject within tbe letter of the law, the subject is free, however apparently witbin tbe spirit of tbe law tbe case might otherwise appear to be. In other words, if there be admissible in any statute wbat is called an equitable construction, certainly such a construction is not admissible in a taxing statute, when you can simply adhere to the words of the statute.”
See, also, Twine Co. v. Worthington, 141 U. S. 474, 12 Sup. Ct. 55, 35 L. Ed. 821; Rice v. U. S., 4 C. C. A. 104, 53 Fed. 910. It is tersely put in the Reports of the supreme court of the United States:
“One who claims title under summary proceedings, when a special power has been executed, as a tax sale, must show every fact necessary to give jurisdiction and authority to the officer, and a strict and exact compliance with every requirement of the statute.” Parker v. Overman, 18 How. 137, 15 L. Ed. 318; Williams v. Peyton, 4 Wheat. 77, 4 L. Ed. 518; McClung v. Ross, 5 Wheat. 116, 5 L. Ed. 46.
The validity of the tax: By an act approved 23d December, 1891, the general assembly created a new school district within the county of Barnwell, to be known as tbe “Elko Graded School District,” and authorized the levy and collection of a local tax therein. 20 St.
The levy of this tax was valid. Was the levy of the tax execution valid? The execution was put into the hands of the sheriff, and by him given to one Smith, who levied on the land and conducted the sale. Smith was employed in the sheriff’s office as a deputy, bat his general appointment as deputy had never been confirmed by the judge,
Was the levy and sale invalid? The land was worth at least $2,500. The taxes, penalties, and costs were some $31 in all. The whole plantation was levied upon and sold, and brought $85. Section 347, Rev. St. S. O., provides when and how the tax execution should issue. It gives minutely the form of the execution. Its requirement is to levy the same by distress or sale of so much of the defaulting taxpayer’s estate, real or personal, or both, as may be sufficient to satisfy the taxes, state, county, and special, of the defaulter. This language has no ambiguity. Only so much of the defaulter’s estate as may be sufficient to pay the tax must be levied upon and sold. The language is mandatory. It is designed to protect the property holder. The purpose of the law is to secure the tax, not to confiscate the property of the citizen. Speaking upon this subject, Mr. Justice Field, in French v. Edwards, 13 Wall. 511, 20 L. Ed. 703, says:
“There are undoubtedly many statutory requisitions intended for the guide of officers in the conduct of business devolved upon them, which do not limit their power, or render its exercise in disregard of the requisitions ineffectual. Such, generally, are regulations designed to secure order, system, and dispatch in proceedings, and by a disregard of which the right of parties interested cannot be injuriously affected. Provisions of this character are not usually regarded as mandatory, unless accompanied by negative words, importing that the acts required shall not be done in any other manner or time than that designated. But when the requisitions prescribed are intended for the protection of the citizen, and to prevent a sacrifice of his property, and by a disregard of which his rights might be and generally would be injuriously affected, they are not directory, but mandatory. They must be followed, or the acts done will be invalid. The power of the officer in all such cases is limited by the manner and conditions prescribed for its exercise.”
Clearly, the provisions of this South Carolina statute were made with this object, and they are mandatory. Judge Cooley adds the weight of his authority to this. In his work on Taxation, he says:
“Such a provision [that only so much of the land must be sold as would pay the tax] must be strictly obeyed. A sale of the whole, when less would pay the tax, would be such a fraud on the law as to render the sale voidable at the option of the landowner; and the deed would be void on its face if it showed the fact of such excessive sale.” Page 496.
One tract marked “A,” on the upper part of the plat, has 25 acres in it. All the witnesses say that it can be cut off from the land, and easily bring §100. Another, marked “B,” on the lower side of the plat, separated from the main body of tbe land by a public road, contains 8 acres, has on it one or more tenant houses, and rents for a bale of cotton for tbe year. Tts estimated value is over $100. In the opposite corner of the plat, on (he railroad, is another piece of land, containing 8 or 10 acres, easily cut off from the tract, and worth $100 and upward. It is manifest that any one or all of these little parcels could have been sold, and could have paid the tax. Under these circumstances, the conclusion cannot he avoided that a levy on the land as a whole, valued by witnesses at $2,500 to $3,000, assessed for taxation at §1,433, having on it a comfortable dwelling house and several tenant houses, in order to pay a tax of $31, was an excessive levy. It
The purchasers at the tax sale rented the land in 185)9, and have it now under rent for 1900. They have received the rent for 1899. It is claimed that they must account for it. The complainant mortgagee has no right to such an account. “A mortgagee is not entitled to rents and profits of mortgaged premises until he takes actual possession, even though he has the right to take possession on condition broken.” Teal v. Walker, 111 U. S. 242, 4 Sup. Ct. 420, 28 L. Ed. 415. Nor can the mortgagor in these proceedings claim such an account. She does not set up any such claim in her answer. Nor has she filed any cross bill praying relief against her co-defendant. “One defendant cannot have a decree against a co-defendant without a cross bill, with proper prayer and process or answer, as in an original suit.” Daniel!, Oh. Prac. (Perkins’ 3d Am. from 3d Eng. Ed.) 1648. This renders any discussion unnecessary with regard to Mrs. Julia E. Easterling. She conveyed all her interest to E. E. Easterling a short time after the tax sale. A decree will be entered in conformity with this opinion.