Day v. Smith

39 So. 526 | Miss. | 1905

Whitfield, C. J.,

delivered the opinion of the court.

The controlling question in this case is whether the sale of the land in controversy on May 6, 1861, for the unpaid taxes of 1860, and the tax deed delivered to the purchaser thereunder, in May, 1863, are void for the reason that the taxes of the two intermediate years — 1861 and 1862 — -were in aid of the confederate states government.

Code 1857, ch. 3, art. 39, p. 80, provided:

“The collector shall file all deeds for land sold to the state, or other persons, in the office of the clerk of the probate court of the county, on or before the second Monday in May, there to remain for two years from the date of the sale unless sooner redeemed; and the owner of such land, or any person for him, may redeem the same within the two years by paying to the said probate clerk the whole amount of tax for which such land was sold, with all costs and charges consequent upon said sale, and fifty per centum damages upon the amount of said tax and costs, and also all state and county taxes that have accrued on said land since said sale, and also five per centum on the whole amount of such redemption for the compensation of the said clerk for making the same,” etc.

Article 43, ch. 3, p. 82, of the same code provided:

“When any land shall have been sold for taxes and purchased by any person other than the state, the taxes thereon for all succeeding years until the same shall have been redeemed shall be charged by the collector to such purchaser or his assigns, and collected of him or them in like manner as other taxes due by him or them, and such land shall be liable to be sold for the taxes of such purchaser or his assigns, and if sold for the taxes of such purchaser or his assigns, and not redeemed by him or them, the persons as whose property it was assessed shall be entitled to redeem the same from the second purchaser, on payment only of the amount due in such second sale.”

It is contended for the appellants that these two sections of the law make it plain that when the purchaser paid the amount of his bid — fifty dollars — oh May 6, 1861, the tax deed was deposited with the clerk of the probate court, there to remain until May 6, 1863, and that said purchaser, in order to obtain the tax deed, had necessarily to joay the taxes on the land in the years 1861 and 1862, since by the express terms of the statute taxes for these two years were charged against him, and that consequently the payment of said taxes was a condition precedent to his obtaining said tax deed; that the taxes for those two years, being largely made up of taxes in aid of the confederate states, were illegal taxes, and no title was imparted to the purchaser; and, finally, that the period of redemption must have fully expired and the owner have failed to redeem before the tax purchaser became entitled to the deed for the land. Undoubtedly the taxes for the years 1861 and 1862 did largely embrace taxes of the kind described, as held in Shalluck v. Daniel, 52 Miss., 836, and other cases cited in the brief of counsel for appellants. See Dogan v. Griffin, 51 Miss., 782; Beard v. Green, 51 Miss., 856. It is held in the case of Bhattuck v. Daniel expressly that a tax sale made for the taxes of the year 1861 was absolutely void. It is therefore manifest that if it was a condition precedent to the vesting of title in the tax purchaser that he should pay the taxes charged against him under the law of the state at that time for the years 1861 and 1862, the sale must be declared void. A very ingenious and able argument is made to show that it was not a condition precedent, but that the purchaser at the tax sale, by the very fact of. his purchase and the execution of the deed pursuant thereto, acquired an inchoate estate in land which vested in him immediately after the tax sale and the payment of his bid, which estate was subject to be defeated by redemption within two years, but that after the expiration of two years the title became absolute and unconditional in the tax purchaser. The complete answer to this proposition is the case of Adams v. Mills, 71 Miss., 150 (14 South. Rep., 462). So long as that decision remains the law it must be held that tbe payment of these two years’ taxes was a condition precedent to tbe vesting of tbe title. In Adams v. Mills the court held that where, during tbe year for redemption, tbe tax deed was by tbe clerk marked “Canceled,” and was delivered to one supposed to be tbe owner, who promised to pay tbe purchase money, but several weeks afterwards discovered that be was not tbe owner, and returned tbe deed without paying, whereupon tbe cancellation was stricken off by tbe clerk, all within tbe year, tbe tax title was thereby rendered void, because, said tbe court: “Under Code 1880, § 571, tbe provision requiring a tax deed to be deposited with tbe chancery clerk,- to remain for one year, was for the benefit of tbe owner, and was a necessary part of tbe proceedings to divest bis title.” This case is decisive 'of this. particular point. And as we understand tbe case of Shattuck v. Daniel, supra (p. 839), it supports tbe -same doctrine. Tbe fact in that case 'was that tbe auditor bad made a deed to tbe complainant from tbe state before tbe redemption period bad expired. On that point tbe court said:

“But when tbe right of redemption has been cut off, and not before, is tbe land subject to entry by a citizen ? Tbe complainant purchased from tbe state on June 22, 1870. Less than a year bad elapsed from tbe date of tbe sale — in 1869 — to tbe time of complainant’s purchase. Tbe authority of tbe auditor to make sale is conferred by tbe -statute — that is, after two years from tbe date of tbe purchase by tbe state, if in tbe meantime there has been no redemption. We have seen that tbe state got nothing under tbe tax sale of 1862. She did acquire an inchoate title by tbe sale in 1869, which would have become absolute, as a title of prima facie validity, after two years from that date. But, since tbe auditor allowed tbe complainant to enter tbe land and become a purchaser contrary to tbe statute, it follows that be did not obtain tbe state’s title.”

It is said, again, that on demurrer there is nothing in tbe pleadings to show that tbe purchaser p-aid tbe taxes of 1861 and 1862. The response to this is that the pleadings show that the purchaser, got the tax deed, and that the presumption of law available on demurrer is that he could not have gotten it without having paid to the probate clerk the taxes which the law made it the duty of the clerk to collect, the presumption being that the clerk did his duty. It is said, again, that, if it was a condition precedent that the tax purchaser should pay the taxes accruing on the land during the said two years — 1861 and 1862 — such condition precedent required him to pay only the lawful taxes, and not the unlawful taxes; that that which required the performance of unlawful acts could not itself have been “really the law” — as counsel phrase it, “the actual law;” and that since, as a result of the war between the states, these taxes were illegal and the act imposing them illegal, therefore the court should hold that, although Code 1857, ch. 3, art. 43, required the taxes of these two years to be paid, the act must be read as if that part was blank paper, and so the purchaser could only be held bound to pay the lawful taxes imposed by the lawfully constituted authorities. Say counsel, pursuing this argument:

“So true is this that Smith might have declined to pay the war taxes, and have allowed his land to sell for the payment thereof; yet he would not have been in default, and under the law no court would have held him in default, because of his nonpayment of such unlawful taxes. ... It was not the lawful duty resting upon Smith, either as tax purchaser or as citizen, to do any act which in the last analysis was unlawful. It was not his lawful duty to aid in rebellion against the lawful government — against the United States; nor did art. 43 of the revenue act of .the code of 1857 require him to do so as a condition precedent to the vesting of his title. It only required him to do that which was lawful, nothing else. It made no difference if at the time he thought it was lawful for him to pay the war taxes or not; and the sole proposition under consideration is, "What was Smith’s lawful duty at the time ? Nothing would have made any single act which was in defiance of the statutes and law of the United States valid, except the success of the confederacy.”

And counsel insist that the argument for appellants proceeds upon the erroneous hypothesis that the acts in contravention of the laws and constitution of the United States were void as against -that government, but valid in Mississippi. “This,” they say, “never can be true, because the supreme court of the United States has always held that Mississippi has never been out of the union.”

We have quoted this much from counsel’s brief because the quotation presents the crux of their whole contention. Counsel misconceive the true view on this subject, as stated in Texas v. White, 7 Wall., 732 (19 L. ed., 227); Shattuck v. Daniel, supra; and Buck v. Vasser, 47 Miss., 559. The court takes judicial knowledge of the condition of the country in 1861, of what the status — the actual status — of Mississippi was at the time. The United States supreme court, and all other courts of the union, judicially knew' that war was flagrant, and that Mississippi had a de facto government, with de facto officials, which officers were bound, necessarily, to execute the mandates of the de facto government then in power and exercising authority. Dewing v. Perdicaries, 96 U. S., 193 (24 L. ed., 654). The acts of the legislature in aid of the confederacy were, of course, void in law. No title acquired in pursuance of a tax sale such as this could, therefore, possibly be- valid. Counsel admit the act to be void in so far as it imposes the duty on the probate clerk of collecting the taxes of the years 1861 and 1862; but they deny that the probate clerk was bound by what they call “the actual law” to exact the payment of these taxes. It may be quite true that the act of the clerk in exacting the payment of the taxes was in pursuance of an illegal act, as a matter of law, according to the result of the civil court; but it is none the less true that at the time he acted he was the de facto official of a de facto government, bound to obey the authority of such government at his peril. It was not part of his duty to determine at that time whether these taxes were legal or illegal. All he had to do was to obey the statutes of the state as written, and the legal presumption is that he did obey what was to him the law. The supreme court of the United States, in Texas v. White, says:

“The legislature of Texas, at the time of the repeal, constituted one of the departments of a state government established in hostility to the constitution of the United States. It cannot be regarded, therefore, in the courts of the United States, as a lawful legislature or its acts as lawful acts. And yet it is a historical fact that the government of Texas, then in full control of the state, was its only actual government; and certainly if Texas had been a separate state, and not one of the United States, the new government, having displaced the regular authority and having established itself in the customary seats of power and in the exercise of the ordinary functions of administration, would have been construed in the strictest sense .of the words a de facto government, and its acts during the time of its existence as such would 'be effectual, and in almost all respects valid. And to some extent this is true of the actual government of Texas, though unlawful and revolutionary as to the United States. It is not necessary to attempt to any extent definitions within which the acts of a state government must be treated as valid or invalid. It may be said, perhaps with sufficient accuracy, that acts necessary to peace and good order among citizens— such, for example, as acts sanctioning and protecting marriage and the domestic relations; governing the course of descents; regulating the conveyance and transfer of property, real and personal; and providing remedies for injuries to persons and estates; and other similar acts, which would be valid if emanating from a lawful government — must be regarded in general as valid when proceeding from an actual, though unlawful, government, and that acts in furtherance or support of rebellion against the United States, or intended to defeat the just rights of citizens, and other acts of like nature, must in general he regarded as invalid and void. 6 Rose’s Notes on U. S. Reports, 1071.”

We understand this to he the settled course of decision on this subject by the United States supreme court, and it will not do to say that, because the result of the great civil war made the act of the legislature in so far as it required the payment of the taxes of the years 1861 and 1862 void as a legal proposition, the court, in passing upon the validity of the tax title where the tax purchaser actually did pay the illegal .taxes and the probate clerk actually did exact them, is to be governed by the fanciful supposition that the purchaser coming to pay the taxes of 1861 and 1862, or the owner coming to redeem, would tender only the legal taxes, instead of being governed by what actually did occur as to all these parties.

But it is insisted, again, that on this demurrer there is nothing in the pleadings to show that the tax purchaser did pay these taxes or that the probate clerk did exact-them. The legal presumption that the clerk did his duty and the possession of the deed by the purchaser sufficiently meet this point. It is further obvious that the owner could not have redeemed this land unless he-had paid, as required by the act, the whole amount of taxes, legal and illegal; and under the authority of Adams v. Mills, supra, this would render the tax sale void. This argument is sought to be met by the same line of thought above referred to: that the owner was not required to tender any illegal taxes — that is, taxes shown to be illegal by the result of the civil war. This all comes back to the proposition above discussed and disposed of. The trouble with the argument. of counsel for appellees is that it blinks the great controlling fact, recognized in all well-considered cases, that the state was a _ de fado government, at least as to all matters “parcel of its civil administration” within its borders; and, consequently, whether this tax title is valid or void must depend upon the facts as they actually occurred, and not upon a theory as to how they ought to have occurred — -that is to say, the actual legal status imparted to them by the result of the civil war. We speak, of course, of acts, like this one, manifestly in aid of the confederate states. We have here the act of the legislature requiring the payment of the taxes of the years 1861 and 1862; we have the actual payment of these taxes by the purchaser to the probate clerk; we have the tax deed delivered in pursuance of such payment by the probate clerk. Such a sale is manifestly void, and -cannot possibly be saved by any metaphysical subtlety which asks us to hold that, because the result of the civil war made such an act illegal, therefore the probate clerk at the time should have dealt with the act as being illegal and not have collected these illegal taxes, and the court must not deal with the situation as it was, with judicial knowledge of the whole situation — the attitude of the state and its officials ancl the real conduct of the parties to the transaction. We are of the opinion, therefore, in the light of the authorities cited in the briefs on both sides, that the tax deed set up by the appellees is void.

The decree is reversed, the demurrer to the cross-hill is sustained, and the cause remanded.