Maris v. Lindsey

87 So. 13 | Miss. | 1920

Lead Opinion

Ethridge, J.,

delivered the opinion of the court.

(After stating the facts as above.) It will be seen from what we have stated that the principal thing considered on the motion dissolved is the validity of the trustees’ sales above referred to, and this appeal is principally for the purpose of seeing if this court will overrule a decision rendered by it in the case of the Planters’ Mercantile Co. v. Braxton, 120 Miss. 470, 82 So. 323. On this appeal a vigorous assault is made on the Braxton C'ase, supra, not only by the attorney for the appellants, but by several attorneys as amicus curiae, and there are also briefs amicus curiae to sustain the decision above referred to.

We have laboriously and painstakingly studied the briefs and authorities, and have reconsidered the whole subject, and have reached the conclusion that the Braxton Case, supra, should not be overruled. It is, to say the least of it, a reasonable interpretation of the language used, and wdiere there are two reasonable interpretations deducible from the language of a statute, and the court has already adopted one of them,i the decision should stand. There ought to be stability in court decisions.

The statute under review in the present case and in the Braxton Case, supra, is section 2772, Code of 1906 Hemingway’s Code, section 2276), and it reads as follows:

“AH lands comprising a single tract, and wholly described by the subdivisions of the governmental surveys, sold under mortgages and deeds of trust hereafter executed, shall be sold in the manner provided by section one hundred and eleven of the constitution for the sale of lands in pursuance of a decree of court, or under execution. All lands sold at public outcry under deeds of trust hereafter executed, or other contracts- hereafter made, shall be sold in the county in which the land is located, or in the county of the residence of the grantor, or one of. the grantors in the trust deed, provided that where the land is situated in two or more counties the parties may contract for a sale of the whole in any of the counties in which any part of the land lies. Sale of said lands shall be advertised for three consecutive weeks preceding such sale, in a newspaper ... in the county, or, if none is so published, in some paper having a general circulation therein, and by posting one notice at the court house of the county where the land is situated, for said time. . . . No sale of lands under a deed of trust or mortgage shall be valid unless such sale shall have been advertised as herein provided for, regardless of any contract to the contrary. An error in the mode of sale such as makes the sale void will not be cured by any statute of limitations, except as to the ten years’ statute of adverse possession.” •

It is admitted in the argument here that the advertisement must be within a reasonable time before the sale, the appellants contending that the language of this section does not mean what we said it meant in the Braxton Case, supra, but that any time within a reasonable time preceding a sale is a sufficient compliance with the statute., and the opinions entertaining that view, as appear from the briefs, vary in their views as to the latitude that the court can allow, varying from one week to three months. One brief, amicus curiae for the appellant suggests that the statute be so construed as to provide that three weeks before the week of the sale, instead of three weeks before the day of the sale.

In construing statutes this court has no desire to reach any conclusion except one in harmony with the legislative intent, and. its efforts are directed to ascertaining the legislative intent, and if the legislature acts within constitutional limits, ive will give effect according to their term and intendment, ascertained according to recognized rules of statutory construction. Wte think the opinion by Justive Stevens in the Braxton Case, snpra, revieAVs the authorities in so far as they deal Avitli the Avord. “preceding,” but counsel for appellees in his brief calls attention to the latest authoritative work in the lexicon field, to AArit, the Oxford Dictionary of the English Language, Avhich' accords Avitli the vieivs Ave expressed in the Braxton Case, supra.

Much has been said about hardships and the destruction of titles, and similar things. We think there is no hardship involved, because it is an easy matter to make a sale on the day following the last day of the publication, but if, for any reason, it Avas not desirable to sell on such day as immediately follows the last day of a three weeks’ publication, the notice could be run for an additional time in the newspaper, which would enable the trustee to select a day Avhich might be desirable by the simple expedient of running the advertisement in one or more issues of the paper, and the legality of this course was distinctly and specifically upheld in the case of Lake v. Castleman, 116 Miss. 175, 76 So. 877. We feel satisfied with the soundness of the decisions referred to, and refuse to overrule them.

It next remains to be decided whether the tax sale conferred a Adalid title on the appellant, or whether the redemption attempted is good or not. Very little attention is iiaid to this point in the briefs and arguments, but' it may be the chancellor desired our views on that proposition.

Section 4338, Code of 1906 (Hemingway’s'Code, section 6972), reads as follows:

“The tax collector shall file all conveyances of land sold to individuals in the office of the clerk of the chancery court of the county, on or before the first Monday of May, there to remain for two years from the day of sale, unless the land be sooner redeemed; and the owner of the land or any person for him, may redeem the same within two years by paying the clerk, regardless of the amount of the purchaser’s bid at the tax sale, the whole amount of tax for which the land was sold, with all costs and charges consequent upon the sale, and twenty-five per centum damages upon the amount of tax, and all costs, and also all state and county taxes that have accrued on the land since the sale, and also five per centum on the whole amount of the redemption money; to infants and persons of unsound mind whose lands may be sold for taxes, the right to redeem the same within two years after attaining full age or sanity, from any purchaser thereof, on the terms herein prescribed, and on their paying the value of any permanent improvements on the land made after the expiration of two years from the date of the sale of the lands for takes.”

We think thfit "when the parties went to the chancery clerk and paid the amount which the clerk stated was necessary, and when the- chancery clerk canceled the deed and surrendered it to them, it constituted a valid redemption, although the clerk did not collect the taxes accruing subsequent to the sale for taxes. The appellants will have the right to collect these taxes from the appellees in an accounting, and make them a charge, if necessary, on the lands. The statute requires such a conveyance to remain on file for two years for the purpose of redemption, and Avhen the chancery clerk canceled the deed and surrendered it to them the deed cannot by his mistake ripen into a valid conveyance, 'notAvithstanding the effort to redeem. Erwin v. Lee, 118 Miss. 194, 79 So. 104.

.It folloAVs from Avhat we have said that the judgment of the chancellor in retaining the injunction until an accounting can be had Avas proper. If the amounts paid and the amounts received bA'- the appellants do not equal the amount of the indebtedness under the deeds of trust held by Maris at the time of the filing of the bill, the court may decree the sale to pay such amount as it may find to be due the appellant Maris, not barred by the. statute of limitations at the time when the injunction was sued out.

Affirmed and remanded.

Sykes and Holden, JJ., dissent. Smith, C. J., being disqualified, took no part in this decision.

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Dissenting Opinion

Holden, J.

(dissenting). I am thoroughly convinced the majority opinion is wrong. It upholds and relies upon the correctness of the decision in Planters’ Mercantile Co. v. Braxton, 120 Miss. 470, 82 So. 323, which I think is error, and should be overruled, because it not only announces an incorrect interpretation of the statutes, but it has established an unreasonable rule which no doubt has been harmful, and Avill continue to be mischievous in results until the legislature meets and corrects it by legislative action.

I agree with the main opinion that “there ought to be stability in court decisions,” but when I feel reasonably certain that a decision is grievously wrong and is harmful in its effects, I think it is best to overrule it and destroy the evil as soon as possible.

My reasons, in short, for dissenting are that the Braxton decision, supra, makes the plain error of judicially adding the words “next before” or “immediately preceding” the day of sale to the provision of the statute which requires publication to be made “for three consecutive weeks preceding such sale.” I do not think the lawmakers intended that sales should take place immediately following the publication of notice. It is probable they meant that the sale should follow reasonably close to the date of the last publication and the expiration of the three weeks’ notice. Certainly it cannot be well contended that the sale must take place within the next day following the expiration of the three Aveeks’ notice, where for instance, the first notice of the sale is published on the first day of the month, the second notice on the 8th, and the third on the 15th, that then the sale must take place on the 22d or he void. In such case the sale would have to be made on the 22d and no other day. The statute only requires three week’s publication of notice, but the main opinion following the Braxton Case has judicially amended the statute so that four publications are now required in order to make the sale valid, unless the sale occurs on the 22d day after the first publication. This is an unreasonable rule, and there is good ground to believe it impossible to follow, for the reason that the statute (section 1607, Code of 1906; section 1374, Hemingway’s Code) provides that it shall be sufficient to publish once each week for three weeks, even though there be not three weeks between the -first and last publication, “but there must be three weeks between the first publication and the day of the sale.” Now, there cannot be three full weeks, that is twenty-one days, between the first publication on the first of the month and the day of the sale on the 22d, therefore it would be impossible for three entire weeks to intervene or come between the first date of publication and the date of sale. The first and last days would be short several hours. Weekly newspapers vary as to the hours of publication, sometimes a- day, or several hours before or after legal hours. At all events it may be reasonably said that it would require an acrobatic performance to carry out safely such a rule as laid down by the majority opinion.

The chief error of the majority is in construing the statute to mean “next before” or “immediately preceding” the sale. An investigation of the meaning of the word “preceding” had led me to a fairly safe and satisfactory conclusion. The authorities are mixed and confused as to its exact meaning, and seem to hold that its meaning depends upon the relation it bears to the particular matter involved, or that it is to be interpreted according to the context. But for the context here “preceding” would simply mean “before,” or any three weeks “before” the sale. But I think the legislature meant to use it to express the idea of reasonably close “before.” ■

However, I think I have a safe guide as to the meaning of “preceding” in our own state. The laAvmakers and the framers of our constitution have used the Avord many times in the constitution and our statutes. Wherever the makers of the constitution use the word “preceding” they invariably qualified it, Avlien they desired to do so, as “next preceding,” “immediately preceding.” See sections 41, 117, 133, 135, 150, 171, 242, and 273 of the constitution. When section 2772 Code of 1906, here involved, was enacted the legislature had before it the constitution and statutes of this state, and must have been informed Avitli reference to the legal use and meaning of the Avord “preceding.” The laAvmaking body certainly kneAV that the Avord “preceding” Avould not ordinarily carry the qualification of “next preceding.” Therefore, if the legislature had intended that the publication must be “next before” or “immediately preceding” the sale, they Avould have said so by using the restrictive Avords generally used for such purpose by the legislative bodies heretofore in our state.

I quite agree Avith the argument that the sale should not be had at- an unreasonably distant date after the last publication of notice, but I disagree Avith the unreasonable, and perhaps impossible, rule as noAV laid doAvn by this court. A reasonable rule in most cases Avould probably be that the sale must take place Avitliin two weeks after the last publication of notice. There should be, hoAvever, at least one Aveek alloAved in AAdiich the sale could be made after the expiration of the tAventy-one days’ notice by publication.

In one of the briefs for the appellant, able counsel, Avho also has had a large experience in the legislation of our state, presents a unique but very plausible theory as to the meaning of the legislature in the use of the word “preceding” in the statute in question. In substance, it is that the legislative intent Avas that the sale should take place within a Aveek following the expiration of the three weeks’ notice; that the lawmakers had in mind “weeks” and not “days,” and, as I understand the contention, the requirement intends that the notice be published three weeks preceding the “week” of the sale, instead of preceding the “day” of the sale, as held in the Braxton Case. The argument advanced is logical, if not conclusively sound. However, I think it is clearly more reasonable than the construction reached in the majority opinion.

The statutes fully prescribe the valid way of foreclosing a deed of trust; and when it requires only three weeks’ notice by publication, it is error for this court to hold, in effect, that four weeks’ notice by publication is necessary for a valid sale. The view that the sale must be on the 22d day from the date of the first publication of notice, where there are only three publications made, is entirely too narrow, and ought to yield to the liberal and reasonable interpretation that the sale is valid when made within a reasonable time, say one week, after there has been three weeks’ notice by three publications. I hope the next session of the legislature will correct the error.

Sykes, J., concurs in the above opinion.