delivered the opinion of the court.
J. B. Thomas and others, heirs at law of Mrs. S. A. 'Shell, brought suit against E. H. Wray, chancery clerk, and the surety, on his official bond for damages for failure to give notice within ninety days, and not less than sixty days, before the expiration of the time for redemption of land sold for taxes. Mrs. Shell died in May, 1910, seised and possessed, of certain real estate in Bolivar county, which, under her will, went to four-children equally. The lands were assessed to her that year for taxes, and were sold the following year for
J. B. Thomas and others, heirs at law of Mrs. S. A. the taxes of 1910. There was no notice issued by the chancery clerk, as required by section 4333, Code 1906 (section 6967, Hemingway’s Code), giving notice of the expiration of the period for redemption. .Prior to the expiration of this time, the heirs had sold the lands in. question, and, the two-year period for redemption having expired, the heirs of Mrs. Shell incurred four hundred dollars expense in buying the outstanding tax claim, and brought suit against the chancery clerk for failure to issue the notice required by this statute.
The plaintiffs showed that Mrs. Shell in her lifetime lived at West, Miss., with her daughter, Mrs. Holmes, and that prior to the death of Mrs. Shell, Mr. Wray, who was then sheriff, had had some correspondence with Mrs. Shell, and had sent her tax receipt to her post office address at West, Miss. After the death of Mrs. Shell her will was probated in Bolivar county in the office of the chancery clerk, and the executor under the
It is the theory of the appellees that the statute only requires notice to be given to the party to whom the land is assessed,-and that the statute is a penal statute, and will be strictly construed — relying upon McClenden v. Whitten, 95 Miss. 124, 48 So. 964, where the court uses language as follows:
“Of course, it was not necessary for the clerk to make an investigation- of the records 'to find out who, in truth, was the real owner of the property, but he was only required to notify the person assessed with the property at the time of its sale.”
The court below granted the peremptory instruction on' the theory that this case construes the statute as only requiring notice to be given to the person to whom the land was assessed, and that the statute was penal in its provisions, and would not be extended beyond its letter.
The case referred to was proper under the facts, and it is not necessary for the clerk to make an abstract •of the record in order to see who is the owner. The language of the statute, in part, is as follows:
“And the clerk of the chancery court shall, within ninety days and not less than sixty days prior to the expiration of the time of redemption, if the owner of the land sold, either to individuals or to the state, be a resident of this state and the address known, to said clerk, be required to issue notice to such owner, in effect following, to wit,” etc.
It will be noticed that this language charges the clerk with the duty of giving the notice to the owner of .the land, if he be a resident of this state and his address is
The proof in the case would' warrant the jury in believing the clerk knew the address of Mrs. Shell, and would warrant the jury in believing the clerk knew that her will was probated in his office and was in his custody. If he did not know these facts, it was knowledge peculiarly within his breast, which he must affirmatively show. The judgment of the court below is accordingly reversed, and the cause remanded.
Reversed and remanded..