56 So. 466 | Miss. | 1911
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
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,
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 pos
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
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 phrase
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.
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.”
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
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 legisla
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
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
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
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
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, re
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
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. Hazle
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
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
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,
Reversed, and bill dismissed.