Hopkins v. Sandidge

31 Miss. 668 | Miss. | 1856

Handy, J.,

delivered the opinion of the court.

This action was brought by the plaintiff in error to recover a tract of land in the possession of the defendant.

On the trial, the plaintiff showed that the land was the property of one Sledge, and was assessed as such for taxes due in 1850, and read in evidence the certificate of the Auditor of Public Accounts, showing that it was returned as forfeited to the State, in April, 1851, and was purchased from the State by one Berry, in November, 1853; also a deed of conveyance made by Berry to the plaintiff.

The defendant then offered a certified copy of the list of lands for unpaid taxes of the year 1850, returned by the tax-collector, to the Board of Police of the proper county, embracing the land in controversy, and proposed to prove that it was returned to the Board of Police on the day of its date, which was the second Monday of April, 1851. The plaintiff objected to the admissibility of this evidence; but it was admitted by the court, the plaintiff excepting.

The defendent further proved that he was in possession of the land in January, 1851, and has been so ever since, claiming title to it under purchase from Sledge.

The verdict and judgment were for the defendant, and the plaintiff brings the case here.

The questions presented by the record for consideration are, 1st, whether it is necessary, under the Act of 1850, in relation to the collection of taxes on delinquent lands, that the list of delinquent lands shall be returned to the Board of Police on the first Monday of April, in order to establish a forfeiture of such lands to the State, and 2nd, whether it is competent to avoid the forfeiture by showing that the list was not so returned, in opposition to the certificate of the Auditor authorized by the 4th section of that act.

The first section of the act makes it the duty of the tax-collector on the first Monday of April, to render such list of lands which are delinquent in the payment of taxes to the Board of Police; and that board are required to examine the list “so returned,” on the second Monday of April, and to order their clerk to certify a copy of it to the Auditor of Public Accounts ; and the 4th section provides “ that said list and verification when filed in the office of the Auditor, shall be entered on a record, &c., and shall vest a title to the lands.in the State, which shall be impeachable only on proof that the taxes for non-payment whereof the said lands were returned forfeited, had been in fact paid to the collector before the return of said list by him to the Board of Police ; and in all controversies which may arise touching the delinquency and forfeiture of such lands, the certificate of the Auditor under his seal of office, shall be held and taken as evidence of the same, liable to be rebutted only by proof of such payment to the collector.”

It appears in this case, that the list was not returned on the first Monday of April, but was returned on the second Monday, and the question is, whether such a return was sufficient to cause the forfeiture.

The act of the legislature in question not only prescribed a rule of evidence, but it divests the title of the owner of the land. In both respects, it is in derogation of the principles of the common law, and operates harshly, and frequently with great injustice upon private rights ; and for that reason, the constitutional force of such statutes has been frequently the subject of serious question. For the same reason, the courts of most of the states of the Union in which the question has arisen, have sanctioned the rule of confining their provisions within the most narrow limits of the language employed. Moulton v. Blaisdell, 24 Maine R. 283; Garrett v. Wiggins, 1 Scam. 335; Scott v. Detroit Y. M. Soc., 1 Dougl. (Mich.) 121; Doughty v. Hope, 3 Denio, 595; Hinman v. Pope, 1 Gilm. 131. And this rule appears to be well sustained by the general principle, that statutes derogatory of private property, and conferring new and extraordinary powers, should receive a strict inter, pretation. Dwarris on Stat. 750. Thi3 principle is just and reasonable in its application to statutes, providing remedies of so summary a character, in requiring punctuality and fidelity in those charged with the duties prescribed by them, and at the same time protecting the citizen from their harsh operation, except upon compliance with the terms prescribed, and which must be considered a part of their policy, and the benefit of which he is entitled to.

Under the force of this rule, it is apparent that the requisites of the statute under consideration, were not complied with. The first act required was, that the collector should return a list of delinquents at a specified time, the first Monday of April. The list was then to remain with the Board of Police, until the second Monday of April. During that interval, the tax payer had the right to come forward and discharge the unpaid taxes ; and it is probable that it was for the purpose of allowing an opportunity, to such persons as had for any reason failed to pay their taxes, to come forward and make payment, that the period of one week was allowed, before the final action of the board establishing the forfeiture to the State. It was a privilege to which the tax payer was entitled, but of which he was debarred, in this instance, by the failure of the collector to make his return at the time prescribed by law. If the party whose duty it was to pay the taxes had made application to the clerk of the Board of Police to ascertain whether the land had been returned as delinquent, as he might have done in good faith, he would have had no reason to believe that any steps had been taken or would be taken, to declare it forfeited. And land may be so situated with respect to the claims and interests of different persons connected with it, that the failure to pay the taxes may not be attributable to any bad faith ; one party supposing that they have been paid by the other. In order to allow such persons a full opportunity to prevent forfeitures, through mistake or negligence, it may be very justly presumed that the legislature intended that the list should be returned and should remain open to public examination for one week before the forfeitures were finally declared, and without such return as would allow that privilege, that there should be no forfeiture.

We are therefore, of opinion that the return of the list by the time prescribed by the statute, was essential in order to work a legal forfeiture, and consequently that the forfeiture in this case was not valid.

The certificate of the auditor, which is made evidence by the 4th section of the act, manifestly contemplates that the forfeiture has been made and returned according to the requirements prescribed. It was entirely competent to the defendant to show that these essential things had not .been done; and when such proof was made, the force and effect intended by the statute to be given to the certificate, were destroyed.

The judgment below is in accordance with this view, and is affirmed.