13 La. App. 642 | La. Ct. App. | 1930
This is a suit for $654.88 against the surety on the official bond of Eustis McManus, clerk of the chancery court of Harrison county, Miss.
The allegations of the petition are that the plaintiff, Gus Mayer Company, Limited, a Louisiana corporation, was the owner of lots 21, 22 and 23 in block 19 of the Soria city addition to the city of Gulfport, Harrison county, Miss., having acquired the property by purchase in the year 1914; that the taxes due the state of Mississippi, city of Gulfport and county of Harrison had been paid from year to year with the exception of the taxes due the state of Mississippi and the county of Harrison for the year 1922; that without notice its property was sold for taxes by Jos. W. Havens, sheriff and tax collector of Harrison county, for the sum of $5.44, the amount due as taxes to the state of Mississippi and the county of Harrison for the year 1922, the property being adjudicated to one Mary Sanders; that the period allowed under the laws of Mississippi for the redemption of property sold at tax sale had elapsed before the bringing of this suit; that plaintiff re-acquired the property from Mary Sanders in November, 1926, at a cost of $654.88; that Eustis McManus was the clerk of the chancery court of Harrison county at the time plaintiff’s ■ property was sold, and that, according to the provisions of section 6967 of the Mississippi Code, it was his duty to inform petitioner by mailing a notice, if its post office address was known to the said clerk, or if it could be ascertained by diligent inquiry, informing plaintiff of the time of expiration of the period allowed by law for the redemption of property, which had been sold for taxes, upon penalty of the responsibility' to it for actual damage sustained by reason of his dereliction in duty; that the said Eustis McManus failed to give the statutory notice; that McManus either knew plaintiff’s' address, or, if he did not know it, he failed to make diligent inquiry to ascertain it as required by the statute; that his failure to perform his duty in this respect was the sole cause of plaintiff having incurred the expense involved in repossessing its property, for which this suit is brought.
To this petition defendant filed an exception of no cause of action, which was overruled, whereupon it answered admitting the execution of the bond sued on, but denied all of the allegations. Subsequently a supplemental answer was filed setting up the illegality of the tax sale under chapter 323 of the laws of the state of Mississippi of 1920, and section 6937 of
The exception of no cause of action is leveled at the alleged absence of any allegation in the petition that McManus could, by diligent inquiry, have discovered plaintiff’s address, the argument on this point being that the averment that McManus “had failed to make diligent inquiry” was not sufficient because the statutory liability did not depend upon the fact that proper inquiry was omitted, but, it must also appear that the inquiry, if made, would have been successful. The petition declares that the clerk failed to make diligent inquiry, and that as a result of his failure the expense sued for in this petition was incurred. This allegation, considered in connection with the other facts alleged in the petition, seems to us to be ample justification for the action of the trial court in overruling the exception of no cause of action.
On the merits we observe that the Mississippi Code (section 6967) requires the tax collector to:
«* * * Make a list of lands sold to individuals, in the same maner as required of lands sold to the state, which he shall file with the clerk of the chancery court, who shall record the same in a book to be kept for that purpose; and the clerk of the chancery court shall, within ninety days and not less than sixty days prior to the expiration of the time of redemption, if the owner of the land * * * be a resident of this state and the address known to said clerk, be required to issue notice to such owner, in effect following, to-wit:
“ ‘State of Mississippi, County of--to
“ ‘You will take notice that--(here describe lands) - lands assessed to you or supposed to be owned by you, was, on the -- day of - sold to ■--, for the taxes of - year -, and that the title to said land will become absolute in -- unless redemption from said tax sale be made on or before - day of -.’
“And if said owner be a non-resident and his post office address be known, or can be ascertained after diligent inquiry, the chancery clerk shall mail to him a copy of the above required notice and note the mailing thereof upon said list * * *. If the clerk or sheriff shall fail to perform the duties herein prescribed, he shall be liable to the party injured by such default in the penal sum of twenty-five dollars, besides the actual damages sustained.’’
It appears from the record that plaintiff communicated with the taxing authorities in Gulfport each year, some times writing as many as four or five letters to ascertain the amount due for taxes for the several years, and that each year, following the payment of the taxes, receipts were mailed to plaintiff at its place of business, on Canal street, in New Orleans. Eustis Mc-Manus, the clerk of the chancery court of Harrison county, testified that he did not know plaintiff’s address and that the extent to which he pursued his inquiry, for the purpose of ascertaining it, was to examine his mailing docket and to ask the county tax collector for it. He failed to make any inquiry at the office of the city tax collector, who had been in yearly correspondence with plaintiff, nor did he examine the records of his own office for copies of past tax receipts to ascertain whether plaintiff’s address was on the receipt. (It appears that- a receipt given by his office for the year 1916 and exhibited to him on the stand, a duplicate of which was admitted to be in the tax receipt books of his office in plaintiff’s name, did show plaintiff’s address.) On this showing we must conclude that no proper or diligent inquiry within the meaning of the Mississippi statute referred to was made.
For the reasons assigned, the judgment appealed from is affirmed.