Fairly v. Albritton

83 So. 801 | Miss. | 1920

Holden, J.,

delivered the opinion of the court.

This case is here on appeal the second time. See Albritton v. Fairley, 116 Miss. 705, 77 So. 651. It involves the validity of the tax title to a lot in Gulfport. In our former decision of reversal we held that certain oral and documentary proof could be made in aid of the ambiguous description in the tax deed. When the case was heard the second time in the lower court, the appellant, who was defendant there, presented a new defense to the action, which is that the tax sale was void because the tax collector failed to immediately file in the office of the chancery clerk a list of the lands sold at the tax sale as required by section 4367, Code of 1906 (section 7006, Hemingway’s Code). We here quote this section.

“4367. How Land Not Sold at Regular Time May be Sold. — If from any cause a sala of any land for taxes which is liable to such sale shall not be made at the time appointed by law for such sale, it may be sold thereafter, in the same or a subsequent year, at any time designated therefor by order of the board of supervisors, Notice of a sale so ordered shall be given by advertising it in the manner prescribed by law. for the sale of land for taxes; and the same shall be made at the same place and subject to all the provisions of law applicable to such sale at the time appointed by law, and a list of lands sold to the state and of conveyances to individuals shall be immediately filed in the office of the clerk of the chancery court, who shall at once record the list and send to the land commissioner a certified copy of ii -, and conveyances to individuals shall be dealt with as those made at the time appointed by law are required to be; and such list and conveyances shall be as valid and have the sarnie effect and.be subject to all the provisions of law applicable to such list and conveyances made of land sold at the regular sale for taxes.”

It appears that the lot here in question was sold by the tax collector at a special tax sale designated by the board of supervisors on July 7, 1903, for the taxes of 1902. The tax collector filed with the chancery clerk the list of lands sold to the state,- which included the lot here involved, on the 10th day of the following August. Thus it will be seen that the list of lands sold was not filed with the chancery clerk until thirty-four days after such sale.

It is contended by the appellant that the filing of the list thirty-four days after the sale invalidates the tax title under the provision of the said section 4367. A decision of this point will end the case.

The question, then, is whether or not the filing of the list thirty-four days after the sale is an “immediate” ■filing as required by the statute. It may be observed in in this connection that the list of lands sold at a regular • tax sale is required to be filed between the first Monday ■ in one month and the first Monday of the following month. But in special tax sales, under section 4367, it ■ is provided that the list shall be immediately filed in the office of the chancery clerk. Would it be reasonable to say that the filing of the list thirty-four days after the sale was a compliance with the statute! Does the requirement of the list to be immediately filed mean that : it may be filed within a reasonable time after the sale!

. We must interpret the meaning of the statute by its plain language. , We are of opinion, therefore, that the tax collector failed to comply with, the statute. Certainly it cannot he said that the filing of the list thirty-four days after the sale was an “immediate” filing with the clerk; nor can it he well contended that the filing of the list thirty-four days after the sale was within a reasonable time under the circumstances in this case. We think the word “immediately” in the statute means that the finding must be done as soon as practicable, under the circumstances, after the sale. It was not intended to signify that the filing might be done within a reasonable time, unless it may be said it means that it must be filed at once within such reasonable time as is practicable under the circumstances. But surely a failure to file the list until after thirty-four days cannot be said to be “immediately,” or as soon thereafter as it was reasonably practicable to do so. Therefore the failure of the tax collector to comply with the statute was fatal and rendered the tax sale void.'

It is said in a case cited in Words and Phrases (Hexamer v. Sonthal, 49 N. J. Law, 682, 10 Atl. 281) that — “The terms ‘immediately,’ when used in speaking of an act required to be immediately performed, is stronger than the expression ‘within a reasonble time;’ yet many circumstances might arise where an act to be done within a reasonable time must be done immediately.”

And again from the same authority it is said: “ ‘ Immediately’ is a term of relative signification, and never designates an exact portion of time, and is used with more or less latitude by universal consent, according to the subject to which it is applied.”

It seems clear to us that the legislature meant to provide that in special tax sales, as distinguished from regular tax sales, the list of lands sold should be immediately filed with the chancery clerk, not on or before the first Monday of the next month as in regular' sales, but “immediately” — that is as soon as practicable under the circumstaces; as soon as the collector could conveniently make up the list and file it with the chancery clerk. In this case the list of lands sold at the special sale was very short and could have easily been prepared and filed within a few days after the sale. Therefore the filing of the list thirty-four days after the sale was not an “immediate” filing within the meaning and contemplation of the statute.

The decree of the lower court is reversed, and judgment here for the appellant dismissing the bill.

Reversed and dismissed.