State ex rel. Thomas v. Wray, 78 So. 360

State ex rel. Thomas v. Wray

78 So. 360 | Miss. | 1918

Ethiudge, J.,

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 *573'will lived in Bolivar county. There was no pretense that any notice was issued at all to any one. The defendant at the conclusion of plaintiffs’ testimony, moved for a peremptory instruction on the theory that Mrs. Shell was dead, and that the land was assessed to her on the assessment roll, and that there was no person in existence to whom the clerk was required to give notice.

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 *574known to the said clerk. If the clerk knows the owner, and his address, he is required by the language of the statute to give the notice. The statute does not say to give the notice to the person to whom it is assessed.. Such person, of course, will he presumed to be the owner, and the clerk would send the notice to such person, unless the clerk knew that another person was the owner at the time .and knew the address of such owner. In the present case the clerk did not issue notice either to Mrs. Shell or to her executor, or to any of her heirs. The will of Mrs. Shell was probated in the clerk’s office, and it appears that he knew Mrs. Shell’s/ address, and it does not appear that he did not know that the will was probated in his office, and if he knew her will was probated in the office, the will showed who the executor of representative was, and it appears that the executor was a resident of Bolivar county. The clerk does not show that he did not know that Mrs. Shell was dead, and does not show that he did not know that her executor lived in the county, or that the will' was probated in his office. We think it was error for the court to give the peremptory instruction, and that the statute was given too strict a construction in this ease. It narrowed the. statute beyond its language.

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..