68 Miss. 779 | Miss. | 1891
delivered the opinion of the court.
The complainant, E. E. Durfey, soon after attaining his majority, filed this bill in the chancery court of Yazoo county against the respondents, in which he alleges that as one of the devisees of Mrs. Eliza Askew, deceased, his maternal grandmother, he was entitled to an undivided one-fourth interest in the lands in controversy ; that the several conveyances under which the respondents claim title to the entire estate in the lands is a cloud upon his undivided interest therein; and he prays to redeem, and for an accounting, etc. The respondents in their answer, besides a vast multitude of other matters, show that one Mercer acquired the state’s title to a portion of the lands by conveyances from the auditor of public accounts in the years 1879 and 1880, and to the remainder of said lands by deed from Gwin and Hemingway, commissioners, in the year 1880; that they were Mercer’s vendees by several purchases about the year 1880 : they deny the invalidity of the tax-deeds under which they claim to derive title, and they deny that their deeds are clouds upon complainant’s title: they deny their liability for mesne profits and rents, even if complainant is entitled to redeem, which they deny. In August, 1889, a year and a half after the original bill had been filed, by leave of the court, the adult brother of complainant and two adult sisters were permitted to make themselves parties complainant, and to amend the original bill. The bill, as amended, alleges that the complainants are the rightful owners of the lands by devise from Mrs. Eliza Askew, deceased; that E. E. Durfey, the sole com
Grant all these defects and irregularities, and the case is no way helped in so far as the three complainants who were made parties to the amended bill are concerned. One of these three complainants was nearly thirty years of age when he became a party to the suit, and the other two added complainants were older. The defendants are shown to have been in actual occupation of their lands since 1881. The statute of limitations of three years, found in section 539, code 1880, interposes an insurmountable bar to any recovery of the lands by P. W. Durfey, Mrs. Cassedy and Mrs. Du-lany. We hold the statute operative from its enactment, and its letter and spirit bar the three older complainants. In pursuance of the public policy to punish the delinquent tax-payer, and to secure the purchaser of land at tax-sale, or, derivatively, under former sales for taxes, and to make so far as legislation having these objects in view can do so, all lands pay taxes, the legislature enacted this
As to E. R. Durfey, the bar had not been completed when he filed his original bill, asserting his title to an undivided one-fourth, interest in the lands, and praying to be allowed to redeem. If the defects and irregularities in the tax-sales, under which defendants derive title, really existed, E. R. Durfey can take advantage of them now, and is entitled yet to redeem upon the terms prescribed by our laws. Reversed and remanded.
Woods, J., delivered the response to the suggestion of error.
The construction placed upon § 539, code of 1880, by this court in Clay v. Moore, 65 Miss. 81, and relied upon by counsel making the suggestion of error, is adhered to by us. The bar of the statute of three years created in this section applies only to those cases in
We adhere also to the opinion of this court in the cases of Clymer v. Cameron, 55 Miss. 593, and Weathersby v. Thoma, 57 Ib. 296. The former opinion of the court in the case at bar is not in conflict with any of the opinions in the cases referred to, and neither does, nor was intended to, unsettle any of them.
The misapprehension of counsel arises from the failure to recall the rule of evidence in such cases, created by the first section of chapter 23, p. 41, act of 1888 (Laws, p. 40). By this statute, the deeds of conveyance from Gwin and Hemingway, commissioners, are made prima faeie evidence that the lands embraced in such deeds were duly and legally sold to the board of levee commissioners. The necessity for the production of a sheriff’s deed to the state, or of the list of lands sold to the state, is obviated by this section of the actof 1888, and the suggestion is therefore without merit.
It is true, generally, that the purpose of our revenue scheme, amongst other ends sought to be reached, is that of punishing the delinquent tax-payer. But counsel takes with too strict literalness what we have said about delinquents. A tax-payer may be really, in fact, delinquent, or he may be apparently delinquent. In either case, so far as the public can know, the delinquency is the same, and, if not cleared up by proper action on the part of the apparent delinquent, the results may be the same. In the case of the apparent delinquents, the loss of their lands may occur, not because they have not in fact paid the taxes due on such lands, but because they have permitted the same to be sold as if really delinquent, and, for one year succeeding such sale, have taken no steps to assert their rights, and, moreover, have permitted thereafter, for three additional years, the purchasers under such tax sale to actually occupy such lands. The apparent delinquent is cut off by the statute of limitations found in § 539 of the code, by reason of his failure in the given time to assert his rights against the purchaser actually occupying adversely.
The hardship, if any there be, is only that hardship imposed by every statute of limitation in exceptional cases.
The former opinion must be adhered to.