5 So. 2d 491 | Miss. | 1942
On September 19, 1932, one McDonald owned and occupied a certain suburban lot in or adjacent to the City of Laurel, in Jones County, Mississippi, at which time the same was sold to the state for the unpaid taxes due thereon for the year 1931. Shortly after the sale, the building on said lot, which was occupied by the owner as a scenic studio, was destroyed by fire. A few months later, he moved to another state where he continued to pursue his vocation, and the lot was again sold to the *188 state in 1933 for the unpaid taxes due thereon for the year 1932. Both of these sales are admitted to be absolutely void for want of authority and power to sell on the part of the tax collector during either of said years, because of the invalidity of the assessments under which the sales were made, due to the lack of legal process and notice to the taxpayer prior to the equalization and approval of the assessment rolls; but the appellee, J.A. Montgomery, who, on March 11, 1939, obtained a forfeited state land patent for the tract of land through the office of the appellee, Guy McCullen, Land Commissioner of the State of Mississippi, relies upon the two-year statute of limitation provided for in Chap. 196, Laws of 1934, in bar of this suit brought by the appellant, B.R. Grant, on January 8, 1940, who has deraigned a good record title from the Government down and seeks to cancel the said tax sales and patent as clouds upon the title acquired by him under a quitclaim deed in his favor from the said McDonald bearing date of November 1, 1938.
The proof disclosed, and the chancellor so found, that neither McDonald, nor any tenant or vendee under him, was ever in the occupancy of the land at any time between the date of the destruction of the house by fire in the fall of 1932 and the time of the filing of this suit; also that neither the state nor its patentee had entered into the possession of said land, claiming it through either of the said tax sales or under the patent, but that the same had been a vacant lot, not in the occupancy of any person whatsoever, during the period of time hereinbefore stated. The proof did disclose, however, that the appellee Montgomery had cultivated the lot to some extent between the years 1935 and 1939 but without any claim of right to do so under authority from the state or under any claim of title derived through either of the said tax sales, but in recognition of the title of whomsoever should prove to be the owner thereof.
Thus it will be seen that we have before us a case wherein the constructive possession, in the absence of an actual *189 occupancy or possession, remained in the true owner who continued to hold the legal title after these unsuccessful attempts to divest him of the same without due process of law.
In order to uphold the constitutionality of Ch. 196 of 1934, which question was presented for the first time on suggestion of error in the case of Russell Investment Corporation v. Russell,
That case was construed by the court below in the case at bar to limit the right of former owners to defeat the application of the statute of limitations prescribed by the said Ch. 196, Laws of 1934, to only such cases where they had remained in the actual possession of the land, either in person or by tenant, after the tax sale. However, in the later case of E.L. Bruce Company v. Smallwood,
In the case of Dingey v. Paxton, supra, the court, in discussing the statute there involved, and which had been enacted to create a bar against the right of a former owner to challenge the validity of a tax sale, said that: "the evident purpose was to secure the title claimed by the State against all attacks by the owner upon any ground, after the expiration of the time limited. The *192 act has a two fold operation; first, it prescribes a short period of limitation, after which no suit shall be brought by the owner for the recovery of the property; secondly, it gives to the conveyances under the tax-sales a conclusive effect as evidence, thereby cutting off all inquiry into the existence of irregularities or defects, and thus operates as a curative law." The court then proceeded to recognize the right of the legislature to prescribe within what time one having the mere right of action may proceed, but then denied its power to create the necessity for suit by converting an estate in possession into a mere right of action, and to then limit the time in which the suit could be brought; and declared that the attempt to do the latter was in excess of legislative power and violative of those fundamental rights of property guaranteed by the constitutional provision to the effect that "no person shall be deprived of life, liberty, or property except by due process of law." Const. 1890, sec. 14.
In order not to be understood as failing to adhere to the long-established and salutary rule as announced in that case, and quoted from with approval in Kennedy v. Sanders,
In the case of Hamner v. Yazoo-Delta Lbr. Company, supra [
In holding that said Sec. 539, Code of 1880, supra, applied as a bar to the right of a former owner to challenge the validity of a tax sale, without regard to whether his objections were based on statutory or constitutional grounds, the decision of the court in the Hamner case was sustained in principle by the cases of Morgan v. Hazlehurst Lodge,
In the case of Kennedy v. Sanders, supra [
As further indicating that this court has not construed the case of Hamner v. Yazoo-Delta Lbr. Company, supra, as overruling all that had been said as to the rights of a former owner as against a defendant claiming under a tax sale, it was said in the more recent case of Newman v. J.J. White Lbr. Company,
Thus it will be seen that the court read into the statute of limitation under consideration in the Newman case, *199 supra, relating to suits in equity to "recover" land, the words "in the possession of the defendant" — a necessary element under our decisions to confer upon the legislature the constitutional power to require the owner to commence an action to enforce his rights. The same reason exists for implying these words in Ch. 196, Laws of 1934, "to recover said land from the state, or its patentees, on account of any defect, irregularity or illegality in the assessment, levy or sale of such land for delinquent taxes," since it is neither the tax sale nor the claim of title by the purchaser or its vendee under such a sale that places the statute of limitations in operation, but it is the invasion of the actual or constructive possession of the former owner under the tax sale that creates the duty on his part to commence an action within the period prescribed.
In again holding that the statute has no application to an owner in possession, the court said in White v. Noblin,
But, that which seems to now create some confusion in regard to the law on this question is certain dictum found in the opinion in Russell Investment Corp. v. Russell, supra, when, in upholding the constitutionality of Ch. 196, Laws of 1934, as applied to the defects, irregularities and illegalities of the tax sale then under consideration, we used the words "other than jurisdictional or constitutional objections," found in the paragraph therein which reads as follows: "As applied to defects, irregularities or illegalities in the assessment, levy and sale of land to the state for taxes, other than jurisdictional or constitutional objections, we are of the opinion that the constitutionality of the said Ch. 196, Laws of 1934, must *200 be upheld; that within this limitation the statute may be successfully invoked as one of limitation against any suit which seeks to challenge the validity of any tax sale to the state, embraced within provisions, on the ground of the existence of such defects, irregularities or illegalities, and particularly where the effect of its application would neither be to shorten the period allowed for redemption, nor to divest an estate in possession."
In that case, the defects, irregularities and illegalities complained of were not deemed by the court to be jurisdictional or constitutional objections, and in applying Ch. 196, Laws of 1934, to the facts of that case, the author of the opinion yielded to the temptation to use the words "other than jurisdictional or constitutional objections" with the view of pretermitting a decision on that point until a case involving the validity of a tax sale on such objections should arise under this particular statute. But, from what we have already said in the opinion in the present case, it follows that we now hold that this statute of limitation applies as against either statutory or constitutional objections to the tax sale, but that at the same time it is wholly inapplicable either to a case where the former owner has remained in actual possession, either by himself or tenant, after the sale, or to a case where, if he does not remain in actual possession, there has been no adverse occupancy or possession by the purchaser at the tax sale, its patentee or his vendee for the period of limitation prescribed.
From the foregoing views, it also follows that the decree of the court below dismissing the bill of complaint must be reversed, and that a decree should be rendered here in favor of the appellant canceling the said tax sales and the patent issued pursuant thereto, because of the admitted invalidity of the said tax sales and the failure of the purchaser or its vendee to enter into the possession of the land under and by virtue thereof and hold the same *201 for the statutory period in such manner as to constitute an invasion of the constructive possession of the former owner and his vendee.
Reversed and decree here for the appellant.