Nelson v. Abernathy, 74 Miss. 164

Nelson v. Abernathy

74 Miss. 164 | Miss. | 1896

Whitfield, J.,

delivered the opinion of the court.

The description, '££ 37 acres in the N. of Sec. 1, T. 13, R. 4,” was void for uncertainty. Sims v. Warren, 67 Miss., 278; Pearce v. Perkins, 70 Miss., 276. As to the other lands, it is *168distinctly averred in the bill, and admitted by the demurrer, both that the sheriff offered first one forty-acre tract, and then another, disconnected from it, and so on, and then the whole of that tract, and did not add the second forty-acre tract to the first, and the third to the first two, and so on, and that, in offering each forty-acre tract, he failed entirely to designate or describe each such lot in any way whatever. In Hodge v. Wilson, 12 Smed. & M., 498, all the judges agreed that this last fact (the failure to designate and describe the tract offered) made the sale void. Section 3813 of the code of 1892, though not containing the word “add,” appearing in §521 of the code of 1880, is substantially identical with it; and under the one, as the other, the sheriff should add the first forty-acre lot to the second, and so on, so far as the manner of sale in this respect is concerned. We do not now hold, however, that the failure to do this would make the sale void. But we do hold that the failure to describe or designate in any way what forty acres the sheriff was offering does render the sale void. One who bids at a tax sale is entitled to know for what precisely he is bidding, and the owner is entitled to have his land so; offered, by proper designation, that intending purchasers may be able to bid intelligently, and that the part thus properly sold may bring as much as possible. Section 3817 of the code of 1892 (see § 525 of the code of 1880, and § 1700 of the code of 1871) provided that “no such conveyance [tax deed] shall be invalidated in any court, except by proof that the land was not liable to sale for the taxes, or that the taxes for which the land was sold had been paid before sale. ’ ’ But this court, in Griffin v. Ellis, 63 Miss., 348, in construing this very statute, held a sale void because the collector sold the whole body of land without first having offered it in subdivisions, adding to each body an additional subdivision until the whole was exposed, and instanced many other things -than the failure to pay the taxes before the sale, which were vital to the validity of the sale. And it is equally clear that the pro*169vision in § 3813, code 1892, that no error in conducting the sale should invalidate it, does not have the effect to cure a total departure from the manner of selling prescribed by law — to make immaterial the things which are fundamentally vital to a valid sale. Failure to advertise, etc., may not be material, for the law fixes both time and place of sale. But the things omitted by the sheriff 'in making this sale are fundamental.

Nor does the well-known constitutional provision help the appellee. As was well said in Gamble v. Witty, 55 Miss., 36: £ £ The constitutional provision cited cannot be successfully invoked to sanctify illegality, and cure a departure from the requirements of law in the important matter of imposing taxes. ’ ’ And no more can it be invoked to cure the fatal errors in the manner of sale pointed out in this bill. The necessity that the manner of sale shall be legal, notwithstanding such statutes as § 3817 of the code of 1892, § 525 of the code of 1880, and § 1700 of the code of 1871, is clearly pointed out in Mr. Justice Campbell’s concurring opinion in Virden v. Bowers, 55 Miss., 26, where, in discussing § 1700 of the code of 1871, he says that the section simply meant that the tax collector’s conveyance should not be invalidated except by proof that the taxes had been paid before sale, where 1 £ there was a legal assessment, and a legal sale as to the time, place and manner of selling. ” We think the manner of sale here was not merely irregular, but a total departure from the method the law has specifically and plainly declared. To give the statute the construction contended for by appellee, would sanction a tax sale at midnight.

The decree is reversed, and the cause remanded for an accounting as to the taxes paid by appellee, which appellant offered to pay. ,

Reversed, demurrer overruled a/nd cause rema/nded.