Lead Opinion
Appellant, Leavenworth, was the owner in fee simple of the land hereinafter described and remains such owner unless his title was lost by the tax sales here in question. On the assessment roll for the year 1930 there was assessed to appellant as owner, and on line 11 of the page covering Secs. 6 and 7, Tp. 1, N.R. 13, the lands as follows: S. 1/2 of S.W. 1/4 N.W. 1/4 of S.E. I/4 S. 1/2 of S.E. 1/4 Sec. 6, Tp. 1, N.R. 13, assessed valuation $1,000.
And on line 22 of the page, the land of appellant in Sec. 7 was separately assessed as follows: All except N.E. I/4 of N.W. 1/4 Sec. 7, Tp. 1, N.R. 13, $3,000.
It will be seen from the descriptions that, as located on the ground, the land constituted one tract of contiguous subdivisions. The taxes for the year were not paid and on the first Monday, the 6th day, of April 1931, the tax collector sold the lands to the state, but in making the sale he sold the land in Sec. 6 by one sale, No. 217, and the land in Sec. 7 by another, No. 218, as shown on the face of his certified list of sales to the state; so that he made two sales of one contiguous tract owned by the same owner, and the sales having been made under Sec. 3249, Code 1930, as it then stood, they were invalid. Gregory v. Brogan,
Appellee stresses the fact that, in his list of lands sold to the state, the tax collector certified that he made the sales "pursuant to the requirements of law" and appellee argues that, inasmuch as the law required the tax collector to make one sale of the one tract, it must be presumed that he acted accordingly, and Jones v. Seward,
Appellee asserts, and the court so held, that after she had obtained her forfeited land patent from the state she went into the possession of the land, and remained in possession for more than two years next before the cross bill was filed by the appellant, and in that connection she invokes Chap. 196, Laws 1934, Sec. 717, Code 1942. A careful examination of this record discloses that the first act of appellee evidencing anything which may be considered as the taking of an adverse possession was when appellee had the land surveyed in October, 1940, and the cross bill by appellant challenging the tax sales was filed in September, 1942, or within less than two years. Prior to October, 1940, the lands were uncultivated, unenclosed cut-over acreage, and all that appellee had done to or with the lands was to visit the property, but doing nothing thereon which would arrest the attention of an owner. The affirmative of two years' adverse possession is not shown under any rule, however liberal, that can be found in our books.
It is evident that appellee is relying upon the supposed effect of the mere elapse of two years from the effective date of the Act, Chap. 196, Laws 1934, Sec. 717, Code *Page 617
1942. Arguments continue to be made before us, as has been made here, that it is not only within the letter of that statute, but was the intention of the legislature in enacting it, that, regardless of possession, actual or constructive, the completion of the two years' limitation therein prescribed would extinguish all the right and title, including the right of possession, of all persons whomsoever except the state and its patentees. But whatever else may have happened, the principle announced in Dingey v. Paxton,
We were obliged, therefore, in order to bring it within constitutional limitations, to hold that the two-year period of limitation under the statute does not begin to run until the possession of the true owner is invaded or disturbed by or through a claimant under the alleged tax sale, and we thought we had made this plain in Grant v. Montgomery,
The tax sales being invalid, the constructive possession of the lands remained with the appellant, the true owner, until the survey of October, 1940, and conceding, but not deciding, that the survey was sufficient to amount to an intrusion upon, or an invasion of, the possession of appellant, it was, as stated, within two years of the filing of appellant's cross bill, wherefore it becomes immaterial as to what happened on the lands after the survey.
Reversed and remanded.
Concurrence Opinion
Whether Chap. 196, Laws 1934, be viewed as a statute of limitation, or as a curative act, the result as to its constitutional validity vel non, when applied to sales of land to the state for taxes, made prior to its enactment, will be the same. That statute, if valid, would convert a void sale of land to the state for taxes, made prior to its enactment; into a valid sale, and transfer the title to the *Page 624
land from its owner to the state or its patentee by the mere flight of time — two years from the date the statute was enacted — unless the owner in the meantime has brought a suit or action to cancel the title of the state or its patentee. Such a statute was held to violate the Due Process Clause of our Bill of Rights in Dingey v. Paxton, supra, although the possession of the land by its owner was not actual, but only constructive. This holding was followed and approved in Carlisle v. Goode,
In Bruce v. Smallwood,
As we said in our former opinion herein,
It is true that Russell Investment Company v. Russell was overruled sub-silentio by the construction put upon it in Bruce v. Smallwood and Grant v. Montgomery insofar as it holds that Chap. 196, Laws 1934, can be invoked against a landowner whose land had been sold for taxes prior to the enactment of the statute, and who is only in the constructive possession thereof, but that case continues to mislead, as is evidenced by the argument of counsel herein. *Page 627
As to Bruce v. Smallwood and Grant v. Montgomery, my Associates say that "whether the court was justified in" holding that the statements therein that this statute can be invoked against the owner of land sold by the state for taxes prior to the enactment of the statute, by the state or its patentees, if in possession of the land, "is doubtful, but, whether such construction was technically correct or not, looking only to the wording of the statute, we think it is too late now to reverse that holding, since it has become a rule of property and no doubt has been widely acted upon, and especially since the only sales involved are those which occurred prior to April 4, 1934." As hereinbefore pointed out, that question was not involved in those cases, and the statement thereof by the Court, in its opinions, did not enter into the decision of the rights of the parties then before the Court, and therefore are not within the general rule of stare decisis; City of Jackson v. Wallace,
I participated in the decision of Russell Investment Company v. Russell, concurred in everything there said and done, and accept fully my share of the responsibility for the error therein committed. *Page 628
Addendum
It is further suggested that the requirement of possession by the tax purchaser at a void sale as a pre-requisite to invoking the benefit of Chapter 196, Laws of 1934, ought not to apply to the state, for the reason, so asserted, that it is not practical for the state to take possession of the lands purchased by it at tax sales. It is not clear that the state is not able to exercise over such lands the possession necessary to invoke the benefit of the special act, but even though it cannot do so, expediency in favor of the state cannot override fundamental and constitutional rights in favor of its citizens. But the point is not applicable in this case because this action was brought, not by the state, but by its patentee, who is not under the suggested disability.
It is next contended by appellee, with much persuasion, that we were in error in holding that possession by the tax purchaser at a void sale is necessary to the right to invoke the benefit of said Chapter 196, and we are asked to hold that the mere flight of time for two years precludes any and all right of action, and the assertion of any defense, on the part of the owner, whether possession has been taken by the tax purchaser or not, even though the *Page 620
tax sale is void. In again considering this question we should have clearly in mind the essential existing facts in this case. They are (1) that the sale was void, invalid and of no effect (although the writer does not personally agree with that); (2) that the sale was three years prior to the passage of the act, and (3) neither the state, nor its patentee, appellee herein, has exercised adverse possession over the property, or disturbed the possession of the owner, for the time prescribed by the act, which the reporter will here set out as a footnote.1 It will be seen that *Page 621
Section 1 is purely a statute of limitation. It merely prescribes the time in which the owner must bring an action. It does not by its terms endeavor to correct any defect or irregularity in the sale. These are cured, if cured at all, not by the express terms of the act, but only as a result of the inability of the owner to attack them. But Section 3 goes further than Section 1. It undertakes to divest out of the owner and invest in the state, or its patentee, title to the property. Lee v. Smith,
And in order that there be no mistake as to the character of possession herein meant we will say it is that character and type of possession required under Section 711, Code 1942, the ten years' adverse possession statute, and not that under Section 716, Code 1942, the three years' actual occupation under tax title statute.
Appellee again presses upon us the argument that mere defects and irregularities in tax sales may be cured by retroactive acts of the legislature if of a character the legislature might have dispensed with by prior law. But, *Page 623 as we have said, the manner of sale here was not a defect or mere irregularity. The sale was void. And if the special act works the effect intended, without the requirement of adverse possession, property is taken without due process of law. So that we have here involved both a departure from the statute and a constitutional question, which cannot be cured by a retroactive statute. Russell Inv. Co. v. Russell, supra.
Overruled.
L.A. Smith, Sr., J., took no part in this decision.
Section 1. Be it enacted by the Legislature of the State of Mississippi, That the owner, mortgagee or other person interested in any land which has been heretofore or may be hereafter sold or forfeited to the state for delinquent taxes may bring a suit or action to cancel the title of the state, or its patentees, or 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, . . . and not thereafter. Provided, however, the limitations herein fixed shall not apply when the taxes on such land had been paid prior to the time it was sold for taxes, and provided, further, that the provisions of this act shall not apply to lands sold to the state prior to January 1, 1928.
Section 2. If any person entitled to bring any action mentioned in section 1 hereof shall, at the time at which the cause of action accrues, be under the disability of infancy, or unsoundness of mind, he may bring the action within the time in this act respectively limited after his disability shall be removed but the saving of persons under disability shall never extend longer than twenty-one years.
Section 3. The completion of the limitation herein prescribed to bar any action shall defeat and extinguish all the right, title and interest, including the right of possession in and to such land, of any and all persons whatsoever, except the state of Mississippi and its patentees, and it shall vest in the state, and its patentees, a fee simple title to such lands.
Section 4. That this act shall take effect and be in force from and after its passage.
Approved April 4, 1934.