116 So. 95 | Miss. | 1928
Lead Opinion
The appellants filed an answer in which they denied that the real estate described in the bill was assessed for taxes on the land rolls of Sharkey county for the year 1922; denied that any taxes assessed against said property for the year 1922 were never paid; denied that they were sold in accordance with law; denied that Lumbley purchased said land at the said tax sale on the 2d day of April, 1923, or at any other time; denied that complainant had any title by virtue of any alleged tax sale as referred to in his bill of complaint; and denied that Exhibit A to the bill of complaint was a deed executed pursuant to any tax sale.
It was agreed by and between the parties to this cause that there were no lienholders in interest in the case, or involved in any way; that the title of the defendants to *869 this suit is that title vested in them by virtue of a certain deed executed by the Planters' Bank of Clarksdale to P.L. Abel, trustee, which deed is recorded in Book 32, at page 59, of the Land Deed Records of Sharkey county, Miss., and which deed is, by consent of the parties, offered in evidence. It was further agreed that the assessment roll of 1922, under which this sale was made, or had, shows that the land in question in this case was assessed to Mrs. E.B. Dye.
Counsel for the appellee offered, in evidence, the deed dated April 2, 1923, from H.J. Wright, tax collector, to R.W. Lumbley, but the appellants objected for the reason that the instrument disclosed upon the back thereof that the total amount of tax due on the property described was for seventy-three dollars and fifty-four cents, while on its face the instrument disclosed that the property was sold by the tax collector for sixty-four dollars and thirteen cents; and they respectfully submit that the instrument was void for the reason that the tax collector had no power to make a sale for any amount less than the taxes, costs, etc., due on the property, as the statute provided, which objection was overruled, and the deed was admitted and appears in the record. On the face of the deed, it recited that R.W. Lumbley bid the sum of sixty-four dollars and thirteen cents, and that the said land was sold to him; on the back thereof, the schedule of taxes, damages, and costs amounted to seventy-three dollars and fifty-four cents.
It was further agreed that Lumbley had paid all of the taxes assessed against the property since that sale, and that P.L. Abel, secretary of the Yazoo-Delta Mortgage Company, would testify that during the months of January and February, 1923, he was secretary of the Yazoo-Delta Mortgage Company; that on January 25, 1923, he wrote the sheriff and tax collector a letter in which a request was made for a statement of the taxes paid for the year 1922 on the lands owned by the said company, *870 in Sharkey county, which were described in the said letter and which included the lands in controversy; that he received no reply to this letter, and on January 31, 1923, he wrote a second letter, inclosing blank drafts with the request that the sheriff fill them out for the taxes on realty and personalty owned in said county by said company. This letter requested the sheriff and tax collector to fill in the drafts "in accordance with the description already in your hands or inclosed herein, and draw on us for the amount of such taxes, with tax receipts attached." On the 8th day of February, 1923, H.J. Wright, sheriff and tax collector, drew on the Yazoo-Delta Mortgage Company, liquidating agents, Clarksdale, Miss., the two drafts, marked Exhibits 3 and 4 in the record, filled in by himself, and returned tax receipts to the Yazoo-Delta Mortgage Company for its realty and personalty. It was further agreed that Abel would have testified that, had the drafts been made to include the land in question, same would have been promptly paid, and he never, at any time, had received notice of the maturity of the tax above mentioned from the chancery clerk of Sharkey county, as provided by section 6967, Hemingway's Code 1917, as amended by Laws 1922, chapter 241. This was objected to, and the objection sustained. It was also agreed that W.W. Rothchild, the present secretary of the company, if present, would testify that he was secretary for the Yazoo-Delta Mortgage Company during the years 1925 and 1926, and that this company received no notice of the tax sale, as provided in the section above mentioned, to which objection was interposed and sustained.
The chancery clerk, upon being introduced as a witness, testified that no list of lands sold to individuals for taxes for the year 1922 was made or delivered to him by the sheriff; that no such list was recorded in his office; that the regular book in which said lands sold to individuals for taxes, for the year 1922, were entered, did not *871 contain a description of the land involved in this suit; and that the same was not recorded in his office. This testimony was objected to for the reason that all that is necessary, where land is sold to individuals for taxes, is to file a tax deed. This objection was sustained. The land assessment roll for 1922, and the order of the board levying the county taxes for that year were offered in evidence for the purpose of showing that the statement of the amount of taxes, damages, and costs on the back of the complainant's deed is the true amount, but objections to such testimony were sustained by the court. The court thereupon entered a final decree confirming the title of the complainant, from which this appeal is prosecuted.
By section 6103, Hemingway's Code 1927 (Laws 1912, chapter 230), it is provided:
"If, upon offering the land of any delinquent taxpayer, constituting one tract, no person will bid for it the whole amount of the taxes and all costs, the collector shall strike off the same to the state, and he shall, on or before the first Monday of May thereafter, transmit to the land commissioner a certified list of the lands struck off by him to the state, specifying the day of sale and the amount of taxes for which the sale was made, and each item of cost incident thereto, and the land commissioner shall correct the list, if necessary, by the records of his office and of the United States Land Office, and strike from it land improperly on it, and return it to the collector for correction, if necessary, and the collector shall correct it as instructed by the land commissioner and return it to him as corrected.
"And when the list is corrected it shall be recorded in the land commissioner's office and shall then be certified by the land commissioner and be transmitted to the clerk of the chancery court of the county, and be by him recorded in a book kept for that purpose."
We think that, under this section of the Code, the sheriff has no power to sell to an individual land where *872
the individual does not bid for the land the whole amount of the taxes and all costs, but that the effect of the statute is to make the state a bidder for the said land at said amount, and the refusal of the sheriff to comply with the section, and his effort to sell the land for a less amount than the whole amount of the taxes and all costs renders his deed void. His failure to conform to the said section is not cured by section 8247, Hemingway's Code 1927 (chapter 199, Laws 1908), nor by section 8251, Hemingway's Code 1927 (section 4332, Code 1906). There are many provisions in the Code which are directory, and the failure to comply with them, though highly prejudicial to individual rights, is cured by these sections. Among these is section 8252, Hemingway's Code 1927, requiring a tax collector to file a list of lands sold to individuals; and section 8253, requiring the chancery clerk to notify the owners of the land of such sale. Section 6103, supra, is an important statute designed to protect both the state and the landowner. If a sale for less than the amount of taxes, damages, and costs can be made, and if it were valid when made, the state might be wholly unable to collect this revenue from the land so taxed, as the individual might be insolvent and the land would be the only means of affording the state a certainty of securing its revenue. On the other hand, it would be highly prejudicial to the individual owner, for the reason that the lands might be put up and sold for a mere fraction of the taxes due, leaving a personal debt due by him to the state which could be collected by judgment and execution, as a debt due by the debtor to the state under section 4256, Code 1906 (Hemingway's Code 1927, section 8189). See, in this connection, also, Womack v. Central Lumber Co.,
Reversed and remanded. *873
Dissenting Opinion
In the first place, my opinion is, without any curative statute, that the irregularity in the tax sale upon which the judgment in this case is being reversed would not invalidate the sale. But, concede, for argument's sake, it would. If sections 4328 and 4332, Code 1906 (Hemingway's Code 1927, sections 8247 and 8251), do not cure such irregularities in tax sales, I am unable to see what the purpose of those statutes was. The first section referred to provides, among other things, that no "error in conducting the sale," for taxes "shall invalidate a sale" made "at the proper time and place;" and the second section referred to provides, among other things:
". . . And no such conveyance 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, or that the sale had been made at the wrong time or place; and, if any part of the taxes for which the land was sold was illegal or not chargeable on it, but part was chargeable, that shall not affect the sale nor invalidate the conveyance, unless it appear that before sale the amount legally chargeable on the land was paid or tendered to the tax collector."
It is true that our court has held that neither of these statutes was intended to validate a tax sale where the requisitefundamentals for such a sale have been violated.
But the failure of the tax collector, through error or otherwise, in properly calculating the true amount of the delinquent taxes and damages due by the taxpayer, is not one of the fundamental requisites of a valid tax sale. It is rather a long stretch of the imagination, it seems to me, to hold, as the majority opinion does, that in a case of this kind the public revenues will suffer, for the taxpayer is still liable for any deficit that might exist after the sale of his property, and furthermore, the tax collector is liable on his bond for all taxes he fails to collect through his own fault.
SMITH, C.J., concurs in this dissent. *874