Metcalfe v. Perry

| Miss. | Oct 15, 1888

Campbell, J.,

delivered the opinion of the court.

Section 7 of “ An act to provide for the better security of titles to lands held and claimed under tax sale and tax-titles,” approved February 10, 1860, acts 1859-60, p. 213, was not intended to bar a suit to set aside a title acquired under such sale unless brought within five years from the date of the sale, where the taxes had been paid before the sale. It applies only to sales for non-payment of taxes “ due” and unpaid. That is its language, and the right of redemption is expressly recognized and saved by it, which shows clearly that the purpose was to deal with cases of sales for delinquency, for there cannot be a contemplation of redemption where nothing is due when a sale is made. The right to sell land cannot arise, if the taxes assessed are duly paid. Delinquency is as essential a prerequisite of the power to sell land for taxes as an assessment or levy of taxes, and he, who has paid all the taxes assessed on his property, need not concern himself about a sale of it for taxes. The legislature has not attempted to affect the rights of the owner who has performed his duty by meeting the public charge imposed on his property. Its effort has been to reach the delinquent, who deserves no favor, and cannot justly complain of a reasonable bar to the assertion of his claim to question the validity of a tax sale for taxes due and not paid.

We are not called on now to declare that the legislature could not, by mere lapse of time, cut off the right of the owner, who has paid all taxes “ due ” on his land, to question the validity of a sale of it for taxes, for we are satisfied that no such purpose was entertained by the legislature. Therefore, the averment of the bill that the taxes had been paid and that the land was sold for taxes when none were due, is sufficient to prevent the application of the act cited to this case.

Was the decree of October 14,1882, “ null and void so far as complainants are concerned,” because of the facts set forth in the bill? Was the bill of appellant to confirm the tax-title she had acquired prematurely exhibited, and is the decree merely “ brutum fulmen ” as to these complainants, who were infants at the time, and whose right of redemption had not then expired ?

Section 578 of the code of 1880, a copy of § 1753 of the code of 1871, which was a substantial re-enactment of the act of February 10, 1860, cited above, gives the right to the holder of a tax-title to exhibit a bill for its- confirmation, “ when the period for redemption has expired,” and the claim of the appellees is that, as their right to redeem had not expired, the bill of appellant was premature, and the decree void. In our opinion, “the period for redemption” meant by the statute is the general period applicable to the whole community, and not the exceptional and special period applicable to that very small class composed of those under the disability of infancy or want of sanity, and that the rights of this class are sufficiently conserved by the right to redeem after the removal of their disabilities, which is secured to them ; and that a bill may be properly exhibited to confirm a taxTtitle, without delaying for the time required to remove the disability of anype'rson interested. There is no express mention of infants or insane in the statute, but its language is broad enough to give the right to the proceeding against all persons interested in the land, without exception, and it consists with the legislative scheme to insure the collection of taxes to permit the proceeding as to all persons. The effort of the legislature, for many years past, has been to compel the payment of the taxes due upon land, and, if not paid, to induce individuals to purchase delinquent lands when sold for the taxes. Besides the several other provisions on the subject having this object in view, is the right of the holder of a tax-title “ to proceed by bill in the chancery court of the county in which the laud lies to have such title confirmed and quieted,” conferred by § 578 of the code.

There is no reason why such a bill may not be exhibited against infants as well as adults. The rights of infants may safely be committed to the courts, by which they are carefully guarded, ,and it cannot be assumed that it was intended to limit the right of holders of tax-titles to proceed by bill to cases in which infants were not interested. Such an interpretation of the act would lessen its value, and tend to defeat its manifest purpose. Nor is such interpretation required by the interests of infants, whose rights are jealously guarded by the courts, and who are allowed time after coming of age to show cause against a decree for the sale or conveyance of their lands, except in certain cases. The right of infants to redeem land sold for taxes after attaining their majority is unaffected by such proceeding, but in all. else it is to have the same effect as to them as any other proceeding to which they may be parties in chancery courts.

It results from this view that the proceeding by the appellant to confirm the tax-title was not premature, and the decree was not void on that ground.

The other ground of attack on the decree is the allegation of the bill that the appellant, complainant in the suit to confirm, had knowledge of the ownership of the land by the appellees, and of the residence in this state of one of them, and could easily have ascertained the residence of the other, and failed to make them parties as required by the law under which the proceeding was had, and that the complainants had no knowledge of the suit of appellant until shortly before filing their bill. This ground of attack is met by the objection that it is too late.

The complainants delayed their suit until it was too late to make a direct attack by showing cause or bill of review or appealing from the decree confirming the tax-title, and now seek to open it by the averment that they did not have knowledge of it in time. One who seeks, after the period for an appeal or bill of review, to attack and reopen a decree, should not only show want of knowledge of the proceeding complained of, and of all circumstances calculated to put one on inquiry to lead to knowledge, but also should exclude the conclusion of inexcusable ignorance as to the suit. This bill fails to do this. It rather suggests the contrary. Its intimation is that the appellant is in possession of the land. It is silent as to the payment of taxes on the land for any year, except that for which it was sold (1868). If the complainants had regularly paid taxes on the land, and there was no invasion of their possession of it, and no reason existed for them to be on the alert for suits to confirm tax-titles, and their repose in security because of duty to society faithfully performed by the regular payment of all taxes due was disturbed by the surprising discovery of the proceeding which resulted in the decree of-October 14, 1882, when nothing had existed to lead to that discovery sooner, they would at least have commended themselves to the favorable consideration of the court. But the bill fails to present any such view as this, and rests alone upon the averment of want of knowledge of the suit.

That is not sufficient in such a case. Brooks v. Spann, 63 Miss. 198" court="Miss." date_filed="1885-10-15" href="https://app.midpage.ai/document/brooks-v-spann-7986295?utm_source=webapp" opinion_id="7986295">63 Miss. 198.

It is claimed by .counsel that § 578 of the code does not give the right to bring a suit to confirm a tax-title acquired at a sale for taxes to the levee board. It was held in Belcher v. Mhoon, 47 Miss. 613" court="Miss." date_filed="1873-04-15" href="https://app.midpage.ai/document/belcher-v-mhoon-7984223?utm_source=webapp" opinion_id="7984223">47 Miss. 613, that under the act of February 10, 1860, a bill was maintainable to confirm a tax-title acquired by a sale for such taxes, and it seems clear that § 578 of the code of 1880, in the expression “a tax-title” is as broad as the act of 1860.

The decree overruling the demurrer is reversed and the cause remanded for further proceedings in the chancery court.