Hamner v. Yazoo Delta Lumber Co.

McLean, J.,

delivered the opinion of the court.

This is a suit brought by the Tazoo Delta Lumber Company in the chancery court of Sunflower county against the appellants for the purpose of removing clouds from complainant’s title. The complainant alleges that it is the legal and equitable owner of the lands described in the bill, and further charges that the defendants are asserting some kind of claim or interest in and to the lands, that the claims of the said defendants are not valid, and that they have no title whatever to said lands, but that the title and interest claimed by defendants operate as a cloud upon the title of complainant. The defendants, answered, setting up, among other things, that they were-the owners of the lands in controversy. They claim by virtue of a sale of the lands for taxes made on the 7th day of March, 1892, by the sheriff and tax collector of Sunflower county. Said lands were purchased by one N. T. Burroughs on said date and by mesne conveyances whatever title Burroughs acquired vested in the defendants. Defendants set up and claim the benefit of section 2735 of the Code of 1892, and section 530 of the Code of 1880, asserting that they were, and had been, in the occupation and adverse possession of the land for a period sufficient to bar complainant’s cause of action. The cause was tried on bill, answer, and agreement. The agreement shows that complainant has good title to the land, unless the sale for the taxes herein named divested it of the title; that the defendants claim the land by virtue of a tax sale made by the sheriff and tax collector on March 7, 1892; that the sale for taxes was based on the assessment roll for 1889, which was made under the act of 1888 known as the “Madison Act” (Acts 1888, chapter 9), which assessment was void, and was in all respects regular and in accordance with the provisions of said act, and was made for the taxes of 1891; further, that the defendants and their vendors had been in such actual occupation and possession of said lands for the space of three years after the expiration of two years from the date of said sale thereof for taxes; and that said N. T. Burroughs entered upon said lands and held the possession and occupancy for five years continuously,claiming title thereto by virtue of said tax collector’s deed, etc. In other words, the sole and single question presented by this record is whether the tax sale made in' 1892, based on the assessment roll of 1889, which was-made under the act of 1888 known as the ‘ ‘ Madison Act; ’ * which has been declared by this court unconstitutional and void, followed by actual occupation and possession for tbe period prescribed, conferred upon the purchaser at the tax sale a valid title.

The question involved is one of great interest and magnitude, and we have given to it the examination and investigation which its importance demands. The question, if one of original impression, would not be difficult of solution, but the difficulty lies solely in the fact that this court, in Kennedy v. Sanders, 90 Miss. 524, 43 South. 913, Eastland v. Lumber Co., 90 Miss. 330, 43 South. 956, and McLemore v. Anderson, 92 Miss. 42, 43 South. 878. 47 South. 801, decided this question, wherein it was held that the statute under consideration has no application where the sale for taxes is absolutely void; that it was never the intention of the legislature to breathe the breath of life into something that never had any life at all in it. The attorneys for both the appellants and the appellee have presented their respective sides ably and forcibly, and in order that the benefit of these arguments can be had, as well as to shorten this opinion and relieve us of a great deal of labor in taking up and consideringseriatim the numerous points on tax titles heretofore decided by this court, the reporter will copy the briefs for both appellants and appellee in full.

The evil which lies at the very root of the opinions, above named, delivered by this court, declaring that the statute under consideration has no application to the sales of lands for taxes where the assessment was absolutely void, is, first, in failing to place the statute in that category to which it justly belongs; and, second in the omission of the vitalizing and life-infusing element of possession of the lands under the' tax proceedings. The statute is a statute of limitation. We find this section in the chapter on limitations in the Code of 1892. placed there by the legislature which enacted the statute and which adopted the Code. In addition, this statute shows upon its very forefront, and in all of its parts, that it is nothing more or less than a statute of limitation. It is as much a statute of limitation as the general one, which prescribes that actions concerning land shall be brought within ten years, or that an action for assault and battery shall be commenced within one year, and so on, as to the other various causes of action. There is nothing in this statute which distinguishes it from any ■other statute of limitation. It simply provides a period <of time within which actions may be brought to recover any lands sold for taxes; the right to successfully defend being confined to only those who have been in the possession of the land for the prescribed period; the essential, vital instrumentality, which gives the perfect, unassailable title, being not a sale for taxes, but possession under the deed. The possession, or occupancy, of the land is the principal, and the tax deed merely the incident. In other words, the tax deed is the color of title; the possession confers the actual, real title or ownership.

We find this illustrated in the various opinions of this court construing the ten-year statute relative to actions concerning lands. In Jones v. Brandon, 59 Miss. 585, this court says in the most emphatic language that the •adverse possession confers title; possession of the land alone gives ownership, regardless of any claim under any paper title.- This principle extends even to instances where the possessor claimed the land under a mistake. Metcalfe v. McCutchen, 60 Miss. 149. We accentuate that the possession is what, confers ownership under our general statute of limitations; in fact, the paper title, oledor of title, does not augment or enlarge the claim of ownership, the ownership being referred alone to the possession. Under this ten-year statute it is the adverse possession that confers title or ownership. The same is true as to the statute under consideration. The possession, based upon the claim that the land was purchased at a sale for taxes, confers title and ownership. When the real owner, one who has the true paper title, finds another in the possession of the land, and when this possessor is brought into court, the law says to him, “By what right do you claim this land?” He says, “By reason of adverse possession.” The law says, “Produce your title.” He replies, “I have no deed or other muniment of title.” Then the law rejoins, “Yon must establish possession for full ten years. ’ ’ But if he claims possession under a tax title, the only requirement is that he prove possession for three years, fortifying the possession by his tax deed. If he claims under a void sale from # the chancery court under section 2693, Code of 1880, he must simply introduce his court deed and couple with it evidence of two years’ adverse possession. The statute under consideration, section 539, Code 1880, is: “Actual occupation for three years of any land held under a conveyance by a tax collector. ” It is manifest that the actual occupation confers ownership, and that the tax deed is the mere color of title to which occupation is referred. It is not questioned as to the power of the legislature to make this law; indeed, its constitutionality is conceded.

Statutes of limitations are statutes of repose, and by all the courts, both ancient and modern, must be construed liberally in furtherance of the end sought to be obtained. The courts have no right to add anything to or take anything from a statute, where the language is plain and unambiguous. To do so would be intrenching upon the power of the legislature. Neither have the courts authority to write into the statute something which the legislature did not itself write therein, nor can they ingraft upon it any exception not done by the lawmaking, department of the government. Whenever the judiciary shall undertake to violate these rules — indeed, we may say maxims — then it is guilty of usurpation in its most obnoxious form; and the courts dare not do this lest they destroy their own usefulness and power.

A statute which is plain and unambiguous, clear and free from doubt, is its own interpreter, and in such cases it is not necessary to resort to any rule of construction in order to ascertain its meaning. It is not for the judiciary to determine the wisdom, but simply to enforcg the statute as it is written, and leave the responsibility where it justly belongs — upon its creator, the legislature. All of these principles are but hornbook law, known and familiar to all who are mere infants in the school of law and in its primary and academic departments. When there is doubt or obscurity in a statute, one of the cardinal rules of construction is to ascertain the conditions of affairs at the time of its enactment, the evil to be avoided, and the necessary effect produced by the statute.

Turning now to the statute itself, the language of section 539, Code of 1880, is as follows: “Actual occupation for three years, after one year from the day of sale, of any land held under a conveyance by a tax collector, in pursuance of a sale for taxes, shall bar any suit to recover such land or assail such title because of any defect in the sale of such land for taxes, or in any precedent step to said sale, saving to minors and persons of unsound mind the right to bring any such suit within such time, after the removal of their disabilities, and upon such terms as is provided for the redemption of land by such persons.” Mark the language: “Actual occupation . . . shall bar any suit to recover such land or assail such title because of any defect in the sale of such land for taxes, or in any precedent step to said sale.” This statute was brought forward in Code of 1892, section 2735, and is the same, except that it is two years from the day of sale, instead of one year from the day of sale, as specified in the Code of 1880. Is' there anything about the statute which is doubtful or obscure? Can human language be plainer? Can human thought be expressed in more unequivocal and clearer terms? Is there lurking beneath this language any hidden meaning? Is there ambushed beneath its phraseology any concealed thought? It is as clear as a sunbeam, and its broad and sweeping provisions are as full and as all-embracing as the circumambient heavens, and as forceful and majestic as an army with banners. If the legislature intended to exclude any sale or any precedent step from its broad and comprehensive embrace, why did it not say so? If it intended to exclude a sale that was void, why did it fail to omit so vital an exception? In order to exclude any sale, void, voidable, or irregular, it is absolutely necessary to convict the legislature of the veriest folly. This court in several opinions (reference to which are found in appellants’ brief) construed section 539, Code 1880, and other similar statutes, before this section was re-enacted and brought forward as section 2735, Code 1892.

The law is well settled, without one discordant note, that when the highest court in the state construes a statute of that state, the construction so placed thereon becomes as much a part and parcel of the statute as if specifically incorporated therein, and that when the legislature re-enacts the statute it adopts the construction so made by the courts. This is a rule of such universal application that the citation of authorities is unnecessary to support it. It therefore necessarily follows that, when the legislature of 1892 brought forward into the Code of 1892 this former statute, it adopted the statute with the construction which had been given it by this court. The legislature of 1906 amended this section, 2735, Code 1892, by adding to it: “This section shall not apply where the sale is absolutely void and not merely irregular” (Code 1906, section 3095), thereby completely emasculating this statute, as irregularities are cured by section 4332, Code 1906. However, this amendment evidently evinces the purpose of the legislature to effect a change in the statute, and not to declare the meaning of the former statute, except this amendment was a recognition that the former statute was susceptible of construction including sales absolutely void.

Turning to the wisdom of the act, and at the same time tracing in its chronological history, its development, let us look at the condition of affairs at the time when this act was horn and brought into being, the evil that then existed, and the remedy sought to be applied to the conditions then existing. The causes that gave birth to the condition of things arose mainly during the reconstruction period — a period when there was no order in politics and no consistency in statesmanship; a time when incompetency was paramount in almost every department of the state government. The members of the board of supervisors, whose duty it was to approve the assessment rolls, to make the levy for taxes, and who acted as the sole financial officers of their respective counties; the assessor of taxes, who compiled the rolls; the tax collector, in whose hands was placed the machinery for enforcing the collection of taxes by sale and otherwise; the members of the various levee boards throughout the state, whose duty it became to levy and collect taxes — were as a rule ignorant and incompetent, and then to this incompetency was united the spirit of extravagance, loot, and plunder. The results of this were, first, that invalidity crept into almost all sales for the collection of taxes. Ño one had any confidence at all in tax titles. A tax title was regarded, generally, as no title at all, and conferred upon its possessor nothing “in the heavens above, or in the earth beneath, or 'in the waters under the earth;” and the corollary necessarily was that the state and the various levee boards became the owners of vast and immense portions of the lands throughout the entire state, thus withdrawing these lands from taxation, and thereby leaving the state with inadequate means with which to defray its expenses in running the governmental machine. This, in turn, caused excessive levies upon the property remaining in the hands of individual owners. Such was the condition of affairs when the Constitution was adopted in 1869, and the provision for the first time inserted in the organic law of the state, to wit: ‘ ‘ The legislature at its first session shall provide by law for the sale of all delinquent tax lands. The courts shall apply the same liberal principles in favor of such titles as in sale by execution.”

The legislature which convened shortly after the adoption of this Constitution, which was in 1871, inserted into the Code of that year section 1709, which provides as follows: “No suit shall be commenced in any court of this state to invalidate any tax titles to lands after three years from the time said land was sold for taxes, and no titles now held to any land heretofore sold for taxes, after the time for redeeming the same has expired, shall be invalidated in any court of this state,, except for the reasons specifically set forth in this article.” This provision was so radical in its terms that grave doubt at once arose in the minds of members of the bar as to the constitutionality of the act, as it undertook to validate, by a short period of limitations, all sales, regardless of whether made before or after the enactment of the law, and regardless of whether the purchaser of the title went into possession of any of the land, claiming under a confessedly void title. Shortly after this the court, in Dingey v. Paxton, 60 Miss. 1038, held that, because the statute was retroactive in its operation, it was unconstitutional and void, using this language on page 1057: “It is sufficient for the present for us to say that the act under consideration, in so far as it attempts to validate a tax title which was void under the law as it existed at the time of its enactment, is violative of our Constitution and void. The legislature may declare what the law shall be for the future; in some cases it may declare what the law has been for the past; but when the effect of such legislation is to transfer property without the assent of the owner, and vest it in another, it offends, not only against natural justice, but against that clause in our Constitution by which the citizen is protected against loss of property except by due process of law.”

It was argued against the act of 1871 that the legislature by that section undertook to transfer the ownership of property by mere paper title, regardless of the possession of the property, and in support of this principle this ’court, in Dingey v. Paxton, supra, says: ‘‘The power of the legislature to prescribe within what reasonable time one having a mere right of action shall proceed is unquestionable; but there is a wide distinction between that legislation which requires one having a mere right to sue to pursue the right speedily, and that which creates the necessity for suit by converting an estate in possession into a mere right of action and then limits the time, in which the suit may be brought. The mere designation of such an act of limitation does not make it such, for it is in its nature more than that. Its operation is first to divest from the owner the constructive possession of his property and to invest it in another, and in favor of the possession thus transferred to put in operation a statute of limitations for its ultimate and complete protection. A complete title to land, according to Blackstone, consists of juris et seisinae conjionctio; the possession, the right of possession, and the right of property. One who is in the actual or constructive possession of his lands, and who has the right of possession of the property, needs no action to enforce his rights. He is already in the enjoyment of all that the law can give him, and cannot be disturbed in such enjoyment, except by ‘due course of law.’ If possession and the right of possession and the right of property are each an element of title, by what right can the legislature divest the one, if it is prohibited by the Constitution with interfering with the other?”

Such is undoubtedly the law, and has been repeatedly announced by other courts. Cooley’s Constitutional Limitations (7th Ed.), pp. 522, 523. This principle was foreshadowed by the members of the bar when considering the validity of section 1709, Code of 1871, and when the legislature of 1876, which was composed of the best legal talent in this state (all who are familiar with the political history of this state know that in 1875 the ablest and best men in the state left their law and other business and became candidates for state and county offices, solely to redeem the state from the horde of vandals which were then fattening upon its vitals), recognized the invalidity in part of this section 1709, and desiring to put in force a law that would secure confidence in tax titles and that would induce the individuals to purchase lands, and thus again place those lands as governmental revenue producers, enacted section 44 of the act of 1876 (Acts 1876, ■chapter 104), which gave any purchaser at a tax sale, or to the state, or to the vendee of the state, the action of unlawful detainer against any person in possession ■of the lands so purchased, with a proviso that said action of unlawful detainer must be brought within twelve months after the date of such sale, and provided, further, that “twelve months after the final recovery of any judgment in any such action, such judgment shall be a bar to any action possessory or to test the title to such land brought by any person whatsoever, and shall be •conclusive evidence of the right of possession and title in such person or state or their vendees,” thus in every respect complying with the “due process” clause of the Constitution. Still again, in furtherance of the plan suggested, section 539 of the Code of 1880 was adopted, and this section 539, was brought forward in the Code of 1892.

We have thus traced the history and development of this statute in order to ascertain the intention of the legislature from the conditions then existing and the remedy sought to be applied, regardless of the plain and positive provisions of the statute, and we have thus seen that the purpose was to afford security to the owner of tax titles, free from and against the assailment of any and all causes whatsoever. The wisdom of the legislature cannot be questioned, not only because it was necessary that tbe lands should be made revenue producing, but every interest demanded that uncertainty as to titles should cease. This state, especially then, was almost strictly an agricultural section. From her breast the inhabitants drew principally all of their sustenance and living. These lands were largely unproductive and undeveloped; the primeval forest still slept undisturbed by the plowman’s song; the great Yazoo and Mississippi Delta country, holding within its bosom the fertility of the Nile, was almost a terra incognito, and the interests of the state and her people imperatively demanded that these lands should be cleared, put in cultivation, and their wonderful resources developed; and there was but one way by which that could be done, and that was to afford protection to those who would invest their money and means in these lands, and the state, acting through her legal and constitutional authorities, enacted the statute under consideration. We have deemed it unnecessary to refer to the various and numerous legislative enactments curing and attempting to cure defects in tax titles. So to do would prolong this opinion to an unreasonable length. However, we might refer to the abatement act of 1874 (Acts 1874, ch. 33), whereby the legislature, recognizing that so much of the lands had been forfeited for taxes and thereby had become non-productive. to the state, abated all the taxes prior to the year 1874. The manifest object of this legislation was to place these lands back upon a revenue-producing basis for the state.

The argument of the court assailing the validity of the void tax sale is this: A sale, in order to be valid, must be predicated upon a valid assessment; if the assessment is void, then in the eye of the law there is no sale. This is a species of legal reasoning which is seemingly unanswerable, but the prescience of the legislature coming to its aid. and the legislature recognizing that a sale made under a void assessment is void, and at the same, time knowing that such sales were common, undertook under its constitutional power to validate, by a statute of limitations, these confessedly void sales, and as the instrumentality of such purpose made the occupancy of the lands the evidence of ownership, referring the title or ownership, not to the unconstitutional and therefore void proceeding, but to the occupancy of the land held under those tax proceedings; If such be not the intention of the legislature, then such legislation is absolutely nugatory.

From the foregoing it is unnecessary to take up and discuss the several authorities relied upon by appellee, which unquestionably settle the doctrine that, in order to confer title upon the purchaser at a tax sale, there must be a valid assessment, and this is true, even where the legislature undertakes to cure the validity of the sale by prescribing a period of time within which the owner has a right to contest the invalidities of the proceedings We fully concur in all of these rulings, but the stumbling stone at which appellee stumbles is that such is not the purpose as expressed in section 539, supra, but the purpose and intent, as already explained, is to confer ownership by reason of the occupancy of the land — a perfectly constitutional plan or method.

Hawkins v. Mangum, 78 Miss. 97, 28 South. 872, does not touch the question at bar — side, edge, or bottom. The only thing that was decided, or even presented for adjudication, by the court in that case, was first, the validity of the act of 1888 providing for the assessment of land, and, second, what effect, if any, acts of 1890, p. 19, had upon this assessment. The court first decided that the act of 1888 was unconstitutional (in which we fully concur), and' in the opinion on the suggestion of error the court says, on page 113 of 78 Miss., page 875 of 28 South., that; “The act of 1890 (Acts 1890, p. 19) has no sort of application to' a case where there was no assessment. It lias and can have no reference to an assessment absolutely void because of an unconstitutional law.” The court was here referring to the act of 1890, which authorized an equalization of assessments (the assessments máde under the act of 1888 being then in use in the state), and, of course, had no right to validate or to cure an absolutely void assessment, void because in conflict with the Constitution, In this case (Hawkins v. Mangum) the question as to what effect the statute of limitations would .have where the purchaser at a tax sale had been in possession, claiming under a void or voidable deed, could not possibly have arisen.

The principle which is announced in the case now before us is not at all at variance with the principle laid down in Virden v. Bowers, 55 Miss. 1, Davis v. Vanarsdale, 59 Miss. 367, and numerous other cases decided by this court, extending to and including Reed v. Heard, 53 South. 400, wherein it is said that a sale for taxes, in order to be valid, must be upon a valid assessment; that generally a statute that cured or attempted to cure an invalid sale for taxes is predicated upon and presupposed a valid assessment. We again announce our full concurrence in this line of cases, but the courts in these authorities were treating of and construing statutes entirely different from the one now under consideration, and were applying those statutes to an entirely different state of facts from the one shown in this record. The statutes treated of in those cases were section 4332, Code 1906 (a rescript of section 3817, Code of 1902), and section 525, Code 1880, and other,similar statutes, where the legislature prescribed the time within which a suit should be brought to invalidate a tax title, without any reference whatever to a case where the owner of the tax title had actually gone into possession of the land under the tax deed, and had held the land for the prescribed period; the all-important, vital, and distinguishing difference being between where the purchaser of the tax title had taken actual possession of the land and where the owner of the original title remained in possession. He who is in possession can never be injured by the flow of time, and he who is out of possession can never be benefited by it.

Cooley on Taxation (3d Ed.), p. 1068, in discussing the power of the legislature to provide a short period of limitation within which a bad title may ripen into a good one either in spirit, in purpose, or in effect, says it is an act in the nature of an act of limitation; and he discusses three different classes of cases which may be affected by such statutes: (1) Where the owner of the original title remains in possession; (2) where the land is and remains afterwards unoccupied; (3) where the tax purchaser enters and holds possession, claiming title under a tax sale. In the third class of cases he says that by the adverse possession he, the owner of the original title, is excluded from the enjoyment of any right he may claim, and public policy, no less than justice to the tax purchaser, requires that he should bring his suit within a reasonable time in order that all contested questions may be settled; that it cannot be said that five years, or even two years, are not a reasonable time for the institution of such a suit. See the numerous authorities cited in note 1, page 1068. The authorities seem uniform that such statutes, when the time is not unreasonably short, are founded in sound policy, and Mr. Cooley, in this same work (pages 1068 to 1902, inclusive), discusses in extenso the rulings of the* various courts upon statutes curing defective tax sales. An analytical examination of the text, together with the cases cited, will disclose that the principle announced in the instant case is in accord with the authorities of other states upon a statute like the statute under consideration; this statute being that occupation of the land for a prescribed period bars the owner of the original title from showing defects in the tax sale. The casual reader is apt to be confused, and perhaps misled, by that line of cases, cited by tbis author, holding that, where the tax deed or proceeding is void, the purchaser of the tax title cannot claim the benefit of the statute of limitations, although he has been in possession of the land. These cases are predicated upon the proposition that, in order for a party to be in adverse possession of the land, he must not only be in possession but must be in possession under color of title. But these authorities hold that a void deed, whether void on its face or otherwise, is not color of title.

The authorities which so hold are not in accord with the repeated rulings of this court and with the well-established rule in this state, extending as far back as Hanna v. Renfro, 32 Miss. 125, decided in 1856, and Root v. McFerrin, 37 Miss. 17, 75 Am. Dec. 49, wherein it is held that a void tax deed is color of title. In some states it is held that a tax deed must be recorded in order to constitute color of title. The great weight of authority is in full accord with this court, to the effect that an instrument void on its face may, notwithstanding, be good as color of title on which to found a claim of title by adverse possession. Cooley on Taxation (3d Ed.), vol. 2, p. 1091, and authorities cited in note 2. But even in those states where, in order to constitute adverse possession, the party must have entered in under color of title, it is held that, where the tax deed is made prima facie evidence of title, it is plain that it gives color of title, and the decisions are that seven years’ possession, or any other possession for the time required by the statute, was sufficient with such conveyance. Cooley on Constitutional Limitations (3d Ed.), p. 1090, and authorities cited in note 1.

A case on all fours with the instant case is that of Oconto Co. v. Jerrard et al., 46 Wis. 347, 50 N. W. 591, and by reason of the fact that it is identical with the instant case we quote freely from it. This was an action of ejectment. Defendant claimed under a tax deed, recorded August 8,1874. For three years after the recording of the tax deed, the actual possession of the land was in possession of the defendant. The owner of the original title claimed that there had not been a valid assessment, and that consequently the limitations prescribed by the statute could not be invoked by the defendant. The court concedes in that case there was no valid assessment; in fact, it says: “There is no pretense that the tax for which the deed here was issued proceeded upon a regular, fair, and equal assessment of the property to be taxed, made by the officers in the manner and with the securities and solemnities provided by statute, and in such case it has been said there is no tax.” The court then (46 Wis. 325, 50 N. W. 591) proceeds to discuss the rights of the parties claiming under it against the tax deed, void or voidable, and holds that, where the grantee in a tax deed has been in possession under it for three years next succeeding the record thereof, the deed cannot be impeached on the ground that the tax was invalid for want of a valid assessment under the previous decisions of the Wisconsin court. In discussing this question this court says: “ ‘Interest reipublicae ut sit finis litiumIt is therefore the policy of the law that some reasonable lapse of time should end all controversies. All unchallenged possession under color and claim of title, however, defective, should ripen in time into title nnehalleneged. This is the philosophy of statutes of limitation. They are therefore called ‘statutes of repose.’ They give possession — ■ rest from litigation. When they have run, they bar forever all previous rights against the title which they protect — silence forever all objections against and all criticisms upon it. Claims which would have prevailed over it before become extinct. The defects which would have been fatal to it before are cured. Whatever could have been heard to impeach it before can be heard no more forever. So it is here. The respondents had their day to impeach the tax proceeding and to avoid the tax deed. Then they might have said that the groundwork was so defective that there was no tax, and that the deed was therefore no tax deed. This they did not then do, and they are now too late to do it. They suffered the statute to purge the tax proceeding of all defects to raise the tax above impeachment. Their objections may be well founded. But they come out of time. What the respondents might have said, they cannot now say. The statute has left them like one estopped to speak the truth, because they did not speak it when they might. This has been the construction uniformly given by this court to the statute of limitations in relation to tax deeds. It has been uniformly held, in a multitude of cases, that as against the grantee of a tax deed the statute puts at rest all objections against the validity of the tax proceeding, whether resting on mere irregularity or going to the groundwork of the tax. The statute makes a deed valid on its face prima facie evidence, as soon as executed, of the regularity of all the proceedings from the assessment of the land, inclusive, to the execution of the deed. And the effect of all the decisions is that, when a statute has run in favor of a grantee, the deed becomes conclusive to the same extent” — referring to Edgerton v. Bird, 6 Wis. 527, 70 Am. Dec. 473, and the cases collected in the noting of Vilas & Bryant; Lawrence v. Kenney, 32 Wis. 289; Wood v. Meyer, 36 Wis. 308.

In that case the counsel for the plaintiff contended that, to bring a tax deed within the statute, the validity of the tax and of the sale must he established. The court, responding to this argument, says (36 Wis. 327): “Such a construction would go far to make the statute a dead letter. The statute was designed to protect things defacto, not things de jure. When there has been an actual attempt, however defective in detail, to carry out a proper exercise of the taxing power, the statute applies. After the statute has run, the tax deed itself conclusively establishes the validity of the tax and of the sale” — referring to quite a number of authorities. This principle was subsequently affirmed by the Supreme Court of the United States in Bardon v. Land & River Improvement Co., 157 U. S. 327, 15 Sup. Ct. 650, 39 L. Ed. 719, et seq.

In Pugh v. Youngblood, 69 Ala. 298, Brickell, C. J., speaking for the entire court says: ‘ ‘ The probate of the deed is made prima facie evidence of the facts recited in it, in all controversies relative to the land conveyed. This is the value of the deed as evidence before the expiration of the period of limitations to actions for the recovery of the lands. When that period has expired, and if there has been open, continuous possession with a claim of title, however erroneous may be the recitals of the deed, . . . whatever may be the variances between its statements as to the years for which the taxes were assessed, and thq assessment itself, or whatever may be the irregularities attending the sale, the statute operates a bar to the action and was intended to foreclose all inquiry into the regularity of the sale. ’ ’ The court further says, on page 299, that: “The possession taken and held under the deed was adverse, and, if continued for the period prescribed by the statute of limitation, would'not only bar the entry of the true owner, but ripen into an indefeasible title. ’ ’ Numerous other authorities to the same effect can be cited, most all of which will be found collected to notes to Cooley on Taxation, above cited.

We may with profit briefly consider the construction and effect which this court placed upon a statute in pari materia with the statute under consideration. In the Codes of 1871, 1880, 1892, and 1906 there is a statute which prescribes a short period of time within which the owner of the original title has to recover his lands sold under the order of the chancery court. A judgment or a decree of the court without jurisdiction is void, absolutely and irretrievably void, so null that it can be assailed anywhere and in any action, that it will not stand against even a collateral attack. In Morgan v. Hazlehurst Lodge, 53 Miss. 665, Hall v. Wells, 54 Miss. 289, Summers v. Brady, 56 Miss. 10, Bradley v. Villere, 66 Miss. 399, 6 South. 208, and Jordan v. Bobbitt, 91 Miss. 1, 45 South. 311, this court maintained and enforced the legality and effectiveness of the statute in cases where the proceedings to condemn the land were void. These cases are in line and fully sustain the principle we announce in the instant case, and are unalterably opposed to the opinion of this court in Kennedy v. Sanders, 90 Miss 524, 43 South. 913, Eastland v. Lumber Co., 90 Miss. 330, 43 South. 956, and McLemore v. Anderson, 92 Miss. 42, 43 South. 878, 47 South. 801. If the legislature intended, by the statute relating to invalid court proceedings, to curé sales that were constitutionally defective, it also can be said to intend, under an equal, specific, and comprehensive statute, to validate tax sales or tax proceedings, which are also void by reason of an invalid assessment. The assessment and levy of taxes are but the judgment condemning the land for liability for the taxes.

This court, in Jordan v. Bobbitt, supra, in construing* the statute relative to invalid sales made under court proceedings, and quoting from the opinion of Judge Simrall in Morgan v. Hazlehurst Lodge, 53 Miss. 682, says: “The statute is remedial and curative, has its origin in that policy, and if the words will admit it, should receive that construction which will accomplish the end aimed at. It was meant to cure all defects in the sale, no matter from what cause, whether before or after decree, unless the heir brought his action within the time to contest and show its validity. Though the sale be void, he is under color and claim of title, and the statute does no more than protect and perfect his imperfect right, after the expiration of a year from the time the right to bring the suit arose.”

In Hall v. Wells, 54 Miss. 297, Judge Campbell, delivering the opinion of the court, after reaffirming the views of the court, as annnounced in Morgan v. Hazlehurst Lodge, says: “The statute originated in the known fact, that a very large proportion of the sales of property by virtue of the orders of probate courts was void, from various causes; and, as insecurity of titles to property is a great public evil, it was determined to provide a short statute of limitations, applicable to all cases falling within the existing evil; and the section under review contains the provision to remedy it, not by relating back and validating proceedings, but by requiring all actions to recover any property before that sold by any administrator, executor, or guardian, by virtue of the order of any probate court, on the ground of the invalidity of such sale. . . . This section applies to all sales of the class mentioned which are invalid, no matter on what ground. Any sale which is included in the evil intended to be remedied is embraced. ’ ’

This court again, in Jordan v. Bobbitt, supra, .quoting from the opinion of Judge Cooley, delivered in Toll v. Wright, 37 Mich. 93, in construing a statute similar, and in sustaining the view of this court, says, on page 101: “What, then, is the meaning of the statute when it speaks of sales by an executor or administrator under the pro-, visions of this chapter ? It certainly does not mean valid sales, for those need no protection. Neither can it mean sales lawfully ordered, for it makes no mention of any order, and speaks of sales only. Neither can it mean sales in which the statute has in all important particulars been followed, for the manifest purpose is to make an undisputed possession cure defects in the proceedings. Indeed, it cannot possibly, as we conceive, mean more than this: A sale purporting to be made under the provisions of the chapter, and in pursuance of an order confessedly based upon them. If the administrator with such an order has made sale under the provisions of this chapter, and given a deed under which the necessary possession has been had, we think the case is fairly within the intent of the statute. . . . Statutes of limitation are statutes of repose, and we should seek, in construing them, to give them the operation intended. We must not •defeat them by a strictness of construction it was never designed they should be subjected to. Let it be conceded that the administrator’s sale was at the time void; the fact remains that the court assumed to order it under the provisions of this statute, and the administrator has followed its provisions in making the sale. It is consequently a sale ‘pursuant to the provisions’ of the statute, in the sense in which we understand the legislature to have employed these terms. But it is denied by the defendant that the legislature has power to validate a void sale. This is not what is attempted here, as we think. The statute is intended as a statute of limitation in the proper sense.” It is needless to say that this opinion does not conflict with Hoskins v. I. C. R. R. Co., 78 Miss. 768, 29 South. 518, 84 Am. St. Rep. 644, for the reason, given in that opinion, that the legislature could not, in the nature of things, have intended to include property which was not subject to assessment for taxes.

In order that there may be no doubt as to what we hold, we summarize our holdings as follows: First. Under section 3817, Code of 1892 (section 525, Code 1880), the ■owner of the original title, at any time after two years from the date of sale and before actual occupation for three years, can show the invalidity of the tax deed by ■establishing either one of the invalidities specified in section 3817, supra, and in addition thereto a void assessment or any other constitutional defect. Second, Under •section 2735 of the Code of 1892 (section 539 of the Code of 1880), actual occupation for three years after two years from the day of sale is an absolute bar to the original owner to set up any defense, or to test the right of the occupant claiming under the tax conveyance.

A sufficient apology for this somewhat lengthy opinion is the importance of the question involved, and, perhaps, the vast interests it may affect throughout the state. It is with much reluctance we overrule former opinions of this court, but our convictions are so strong as to constrain us to do so, and Kennedy v. Sanders, Eastland v. Lumber Co., and McLemore v. Anderson, supra, are overruled, in so far as they conflict with this opinion.

Reversed, and bill dismissed.

Case Details

Case Name: Hamner v. Yazoo Delta Lumber Co.

Court Name: Mississippi Supreme Court

Date Published: Oct 15, 1911

Citation: 56 So. 466

Court Abbreviation: Miss.