8963 | S.C. | Oct 5, 1914
Lead Opinion
October 5, 1914. The opinion of the Court was delivered by The defendant herein made a contract to purchase from the plaintiff a tract of marshland. The defendant refused to comply with the contract, because one link in plaintiff's chain of title was a tax title and the defendant contends that the tax title is not valid under the statutes of this State. Under the statutes of this State a tax title is presumed to be good and the burden is upon the defendant to show the defect.
There was an agreed statement of facts.
The important facts are as follows:
In 1742 the land was granted by King George II to G. Guignard. Several successive conveyances in the first half of the 19th century were made by which the land was conveyed in part to Jonathan Lucas and in part to Thomas Gadsden., There were no further conveyances of record. The land was marshland and daily covered with tide water. The two tracts aggregated forty-four acres, but they *179 adjoined and there was to evidenced of any dividing line between them.
In 1889 the legislature authorized the sinking fund commissioners to have surveyed any lands that they were informed or believed to have been continuously, for ten or more immediately preceding years, upon neither the Tax Duplicates, nor Forfeited Land List of this State, and, if after such survey, the said absence from said tax books be found to exist, to cause the said land to be placed upon the Tax Duplicate in the owner's name, If known, or in the name of "unknown," if the owner's name be not known, charged and taxed with the entire costs of the survey and investigation and fifty per cent. Penalty additional thereto, and with the taxes for five years immediately preceding, and collect the same under existing law for collection of taxes.
In 1890 the two tracts were put on the tax books for Charleston county as follows: "Unknown Ashley River, 44 acres, assessed $100 from 1885." On June 6, 1890, the land was sold by Ferguson, sheriff, and bid in by Norman P. Gadsden, add., the bid was paid and receipt was given by the sheriff. The sheriff did not make title, but the land was listed in the name of Gadsden, add., and the taxes are paid thereon ever since. On 67th June, 1913, J. Elmore Martin, sheriff, as successor to Sheriff Ferguson, made the deed in question to Gadsden and he conveyed to the plaintiff. The case was heard by Judge Memminger, who declared the deed good and ordered compliance. There are several exceptions, but in argument the appellant takes there positions.
"The first three exceptions raise virtually the same issue and call in question the position taken by the Circuit Judge, that a presumption arises from the fact that the two tracts were merged and sold as one, that the tax authorities did not know that they were separate tracts," The statute said the lands are to be listed as "known" if the owner's name be not know. "Unknown" to whom? *180 Manifestly, unknown to the tax officers. Under the statute the officers are to investigate and there is a presumption that public officers did their duty. There is nothing to show that they did know, and his Honor correctly held under the agreed statement that they did not know.
The deed of Sheriff Martin described the tracts separately. This does not show that it was known at the time of the advertisement and sale.
"The tax sale is invalid because two tracts belonging to different owners were assessed, levied on, advertised and sold as one tract."
There is nothing in the case to show that there was any line of demarkation between the two tracks. Title is traced by the names of the grantors and grantees. The name being unknown, there was not means of knowing that the tracts were separate, even in title,. There was no separation in fact, and this position cannot be sustained.
"Assuming that every prerequisite to the tax sale had been in order, we submit that there were fatal irregularities in the after sequence of events, by reason of which the title of the defaulting owners was never divested."
It is said that there could be no actual possession of this marshland. In that case, the defaulting taxpayer had no actual possession. In 1890 the tax officials put this land on the tax books as land upon which taxes had not been paid in ten or more years. The payment of taxes is not evidence of title, as is supposed in popular myth, but the failure to pay is evidence that no claim was made. We have, then, that for thirty-three, years neither Guignard nor Lucas, nor their heirs, have made any claim to the land. There is a presumption that Sheriff Ferguson took possession in 1890. There is no evidence of a change in the status, except that Sheriff Martin put Norman Gadsden in possession in 1913 and made the deed as he was authorized to do. The statute authorizes the *181 succeeding sheriff to make the deed, and there is not limit in the statute.
So far as the questions raised in this case, there was no error in the judgment appealed, and it is affirmed.
Concurrence Opinion
I concur in the opinion of Mr. Justice Fraser, except I thing that the payment of taxes in competent testimony, in some cases, to prove title.
Mr. JUSTICE HYDRICK concurs in the result.