Opinion
No. 33287.
October 10, 1938. Suggestion of Error Overruled October 24, 1938.
1. TAXATION.
Tax sales of one tract of land lying in two sections to two purchasers, each of whom bought land in one section for amount of taxes due thereon, were void, since statute contemplates but one sale for aggregate amount of taxes due on entire tract (Code 1930, secs. 3249, 3273).
2. TAXATION.
The sale for taxes of one tract of land lying in two sections to purchaser who took two deeds, each of which conveyed part of land lying in one section for amount of taxes and damages due on the particular piece of land conveyed, was void, notwithstanding recital of deeds that conveyances were made according to law, since deeds showed on face that two sales were made instead of one, each for a separate and distinct consideration (Code 1930, secs. 3249, 3273).
3. TAXATION.
The statute providing that actual occupation of land under tax title for three years shall bar suit to recover land or assail title because of defect in sale is a mere "statute of limitations" (Code 1930, sec. 2288).
4. TAXATION.
Suit by remainderman to whom land was devised to confirm title as against invalid tax title was not barred by three-year period of limitation, notwithstanding actual occupation by claimant under tax title for three years after expiration of period of redemption, where bill was filed within three years after death of life tenant, since statute of limitations was not intended to cut off remaindermen (Code 1930, sec. 2288).
5. TAXATION.
Under statute providing that actual occupation for three years under tax title after expiration of period of redemption shall bar any suit to recover such land or "assail" such title because of defect in sale or in any precedent step to sale, the word "assail" does not add any force to the statute, since without it the statute would mean the same thing (Code 1930, sec. 2288).
APPEAL from the chancery court of Tunica county; HON. R.E. JACKSON, Chancellor.
J.M. Forman, of Indianola, W.A. Stigler, of Tunica, and Julian C. Wilson, of Memphis, Tenn., for appellant.
The deed of the tax collector is prima facie evidence of the validity and regularity of the assessment, the levy, the subjection of the land to taxation and it is also prima facie evidence that the taxes were in default, that the sale was regularly and lawfully conducted, of the sale's validity and of the vesture of title in the purchaser at tax sale.
Lewis v. Griffin, 103 Miss. 578; Jones County Land Co. v. Fox, 120 Miss. 798; Salter v. Polk, 172 Miss. 263.
The recitals in the tax deeds that the sales were made according to law are direct and positive evidence that all requests and requirements necessary to the validity of the tax sale were met, carried out and complied with, and in the absence of positive testimony that the sale was not made in accordance with the requirements of law, these recitals prevail. In the absence of such testimony, the tax deeds are valid and cannot be overthrown. (It will be remembered that the sheriff made these deeds before the Code of 1930. Hemingway's Code 1918, Sections 6965, 6966.)
Mixon v. Clevenger, 74 Miss. 67; Lewis v. Griffin, 103 Miss. 578; Thibodeaux v. Havens, 116 Miss. 476; Neal v. Shephard, 157 Miss. 736.
The presumption from the tax collector's conveyance, together with the recital that the sale was made in accordance with law furnished direct evidence that where it was necessary that the land in two sections be offered as a whole that it was so offered. The recitals are the equivalent of the deeds themselves saying in words that although the deeds are separately made that since the law required that the lands be offered together they were sold together. The requirement of the statute is that the lands shall be offered and sold together but there is no requirement that they should be embraced in the same deed. The fact that they were embraced in the two deeds with the recitals that the sale was made according to law does not overthrow either the presumption nor the recitals of the deeds and there is, therefore, no evidence that the lands were not offered and sold together.
Lewis v. Griffin, 103 Miss. 578.
The evidence of the deputy collector who made the sale that while it was his custom to offer and sell lands assessed in separate sections separately even though assessed to the same owner is not sufficient to overthrow the presumption of the statute and the recital of the deeds where he testifies he had no independent recollection of this sale but knew that he had sold land according to the direction of Mr. Jaquess, the attorney for complainant, and knew Mr. Jaquess was present at this sale but did not recollect whether he gave him any directions about how to make this sale or not.
Mixon v. Clevenger, 74 Miss. 67; Neal v. Shephard, 57 Miss. 736.
Actual occupation for three years after two years from the day of sale of land held under conveyance from tax collector in pursuance of sale for taxes bars any suit or any assault upon the tax title so received because of any defect in the sale of the land for taxes or any preceding step to the sale.
Section 2459, Hemingway's Official Code of 1918, bringing forward Chapter 233, page 304, of the Mississippi Laws of 1912, also carried forward in Section 2288 of the Mississippi Code of 1930; Gibson v. Berry, 66 Miss. 515; Jonas v. Flannikin, 69 Miss. 577; Butts v. Ricks, 82 Miss. 533; Hamner v. Lbr. Co., 100 Miss. 349.
Three years actual occupation from the redemption period cures all defects and irregularities in the sale if the land is subject to taxation, curing not only irregularities in assessment but particularly and specifically any failure to comply with the statutes or law with reference to the manner of sale, offering of the lands, and whether it is sold together, separately or as a whole. It is a statute of rest that confers a good title independent of the manner or character of sale.
Gibson v. Berry, 66 Miss. 515; Nevin v. Bailey, 62 Miss. 433.
We know no reason why a court may not exclude evidence introduced by a defendant on the same grounds on which it would exclude evidence of the plaintiff.
Jonas v. Flanniken, 69 Miss. 577; Carlisle v. Yoder, 69 Miss. 384; Cole v. Coon, 70 Miss. 634; Smith v. Leavenworth, 101 Miss. 238; Littlier v. Boddie, 104 Miss. 178.
The Mississippi statute expressly provided that the taxes "shall be a charge on the land or personal property taxed, and the sale shall be a proceeding against the thing sold, and shall vest title in the purchaser, without regard to who may own the land or other property when assessed or when sold, or whether wrongfully assessed, either to a person, or to the state, or any county, city, town, or village, or subdivision of either."
Section 6886, Hemingway's Official Code of 1917, Section 3120, Code of 1930.
The three year statute of limitations was a limitation that set at rest and cured the tax title itself and did not affect the mere right of possession to the land. The occupation for three years, unless assailed by suit within that time barred not only life tenants but remaindermen, and barred these defendants.
Hazlip v. Nunnery, 29 So. 821.
The occupation and possession of Carter under his deeds extended to that not only in actual cultivation but to that over which he exercised ownership in connection with it. It also by operation of law extended to all the land within the calls of his deeds. The two deeds being taken together as the result of one transaction, the occupation under one was occupation under both.
Pearee v. Perkins, 70 Miss. 276; Brougher v. Stone, 72 Miss. 647; Butts v. Ricks, 82 Miss. 533; Dimitry v. Lewis, 150 Miss. 818; Smith v. Leavenworth, 101 Miss. 238; New Domain Oil Gas Co. v. Gaffney Oil Co., 134 Ky. 792.
Dulaney Bell, of Tunica, for appellees.
The two tax sales in 1921 and the two tax sales in 1930 were made under Section 6962, Hemingway's Code of 1917, the same being Chapter 199 of the Laws of 1908.
This statute appears as Section 521 of the Code of 1880, Section 3813 of the Code of 1892, Section 4328 of the Code of 1906, and Section 3249 of the Code of 1930.
The court has uniformly held that, notwithstanding the curative provisions of the statute, a tax deed is void if the collector departs from its provisions in any one of many ways, and particularly where the collector sells an entire tract of land assessed to one owner without offering it in subdivisions, adding to each subdivision an additional one until the entire amount of taxes and charges due by the owner is bid or until the entire tract is sold, or makes separate sales of parts of a tract assessed to the same owner.
Griffin v. Ellis, 63 Miss. 348; Gregory v. Brogan, 74 Miss. 694; Nelson v. Abernathy, 74 Miss. 164.
In 1917, applying the statute as it appeared in the Code of 1906 to a case where the collector had sold land in Section 26 for the taxes and charges due thereon and sold to the same purchaser adjacent land in Section 27 assessed to the same owner, the court held that these sales were void, although in each case the sale was made by offering forty acres and adding an additional subdivision.
Wilkerson v. Harrington, 115 Miss. 637, 76 So. 563.
Section 29 and the East Half of Section 30 constitute a single tract. There is no controversy as to this, and it is shown both by the plat and by the testimony of witnesses, and even in the absence of proof, the court would take judicial knowledge of the fact that the East Half of Section 30 is contiguous to Section 29 of the same township and range, and a part of the same tract.
Shivers v. Farmers Mutual Fire Ins. Co., 99 Miss. 744, 55 So. 965.
It is also uncontroverted that on the assessment roll of 1919-20, under which the East Half of Section 30 was sold to L.S. Lake for the taxes due thereon, and all of Section 29 was sold to Mrs. Dora Savage for the taxes due thereon, these lands were assessed to one owner, the estate of J.W. Bennett. It is further uncontroverted that on the assessment roll for 1927-28 the East Half of Section 30 and all of Section 29 were assessed to one person as owner, to-wit, J.T. Puckett, and that the record shows that said Section 29 was sold for the State and County taxes assessed thereon to E.B. Carter for $156.46, and that the East Half of said Section 30 was sold for the State and County taxes assessed thereon to E.B. Carter for $35.12.
At common law one claiming under a tax deed, however regular on its face, was required to support it with strict proof before it could be accepted as valid.
Minor v. President and Selectmen of Natchez, 4 S. M. 602; Acoff v. Roman, 172 Miss. 141, 159 So. 555.
The prima facie statute is as follows: "A conveyance made by a tax collector to an individual purchaser of land at a sale for taxes, and the list of lands sold to the state at such sale, shall be prima facie evidence that the assessment and sale of the land were legal and valid."
Section 1578, Code of 1930; Section 1643, Hemingway's Code of 1917; Sec. 1983, Code of 1906; Sec. 1806, Code of 1892; Sec. 526, Code of 1880; Sec. 1700, Code of 1871.
The court at an early date held that a tax deed was not conclusive evidence of validity, so that the effect is merely to place the burden of proof upon the party who confirms it.
Virden v. Bowers, 55 Miss. 1.
This court has also recently held that if the infirmity appears on the face of the tax deed, the prima facie statute does not apply, and the deed is either void or the party relying on the tax deed must show that the infirmity does not exist.
Johnson v. Lake, 162 Miss. 227, 139 So. 455.
To entitle a tax deed to be admitted as presumptive evidence, under the statute, it must be substantially in the form prescribed by law and apparently fair and regular, for if it is void on its face, or if it discloses the illegality of the tax or a fatal defect in the prior proceedings, it proves nothing and must be rejected.
37 Cyc. 1464; 61 C.J. 1388, sec. 1967; Bailey v. McRae, 176 Miss. 557, 169 So. 887; Jones v. Frank, 123 Miss. 280, 85 So. 310.
Section 6966, Hemingway's Code of 1917, requires that the tax collector, when he sells a part of a tract of land for the taxes on the entire tract, shall show this on the face of the deed. He is directed to do so, and certainly there is no presumption arising from a deed that the tax collector sold the land for any taxes other than those on the land itself, unless the deed so recites.
The situation with respect to the two sales in 1930 is not different from that with regard to the two sales in 1921. If Mr. Carter had merely brought his suit to confirm title to Section 29 and had introduced his tax deed and proved that the land was subject to taxation, the presumption of validity would have rested upon his case for the time. But when the two deeds were introduced together with the assessment roll, the presumption disappeared.
Gregory v. Brogan, 74 Miss. 694.
There is no prima facie rule which enables us to imagine that the two sales occurred in a manner different from that alleged in the bill of complaint. This statement that each tract was sold separately, first, one being sold for the taxes due thereon, and thereafter, the other being sold for the taxes due on it, especially supported as it is by the two deeds made exhibits, is an admission that the sales were made in a manner that rendered them void, and if the bill of complaint had omitted the claim of adverse possession or had given the date on which the life tenant died, it would have been subject to demurrer.
The failure of the tax collector to follow the statutory requirements is shown in each case by the execution of the two deeds and their recitals.
House v. Gumble, 78 Miss. 259; Gregory v. Brogan, 74 Miss. 694, 21 So. 521.
The effort made by counsel is not to apply the presumption to a single tax deed, which the statute authorizes, but to apply it to two deeds considered together, which is not permitted. If one of the deeds has been introduced, together with proof that the other part of the land was separately assessed to the same owner and delinquent for taxes at the time of the sale, the presumption would then have ceased to apply, and it could not be restored by other proof, that is, by then introducing a second deed, because counsel would not then be relying on the presumption arising from the first deed, but would also be relying on evidence introduced and an attempt to raise a presumption from that evidence. The situation is not aided by any reflection that the state and county collected the taxes on the whole tract. The sale was made in an illegal manner, and this is shown by the record of the sales.
It is not open to argument that testimony of a tax collector or deputy tax collector is admissible to show the manner in which he conducted a tax sale.
Mixon v. Clevenger, 74 Miss. 67, 20 So. 148; Hinson v. Forsdick, 25 So. 353; Stevenson v. Reed, 90 Miss. 341, 43 So. 433; 1 Wigmore on Evidence, secs. 92-93; Herring v. Moses, 71 Miss. 620; Talmadge v. Seward, 155 Miss. 580, 124 So. 791.
The appellant contends that if he has established adverse possession of the land for three years after two years from the date of sale, he has acquired title against the appellees, although they are remaindermen whose right of possession only arose upon the death of life tenant less than two years before the filing of their cross-bill claiming title to the land. This position is as untenable as the position taken by counsel with reference to the prima facie statute.
Referring to this three-year statute, the court has said: "The statute is a statute of limitation. We find this section in the chapter on limitations in the Code of 1892, placed there by the legislature which enacted the statute and which adopted the code. In addition, this statute shows upon its very forefront, and in all of its parts, that it is nothing more or less than a statute of limitation. It is as much a statute of limitation as the general one, which prescribes that actions concerning land shall be brought within ten years, or that an action for assault and battery shall be commenced within one year, and so on, as to the other various causes of action. There is nothing in this statute which distinguishes it from any other statute of limitation."
Hamner v. Yazoo Delta Lbr. Co., 100 Miss. 349, 56 So. 466; Clark v. Foster, 110 Miss. 543, 70 So. 583.
The question is entirely foreclosed by the opinion in Reynolds v. Wilkinson, 119 Miss. 590, 81 So. 278, which involved tax sales made in 1875. In 1916, following the death of the life tenant in 1915, suit was filed attacking these tax deeds, and the statute was plead in defense. The court said: "The right of the appellants to the estate in remainder devised to them by the will here in question is not barred by any of the statutes of limitation, for the reason that their right to the possession thereof did not accrue until the death of their mother, so that the statutes of limitation could not be set in motion until the happening of that event. This is true whether the devise is, as contended by counsel for the appellants, direct to the appellees of a legal estate in remainder, or, as contended by counsel for the appellees, is in trust for them of an equitable remainder. Jordan v. Bobbitt, 91 Miss., 45 So. 311; Clark v. Foster, 110 Miss. 543, 70 So. 583. As pointed out in Clark v. Foster, section 3123, Code of 1906 (Section 2487, Hemingway's Code), has no application to the rights of a remainderman under a devise or grant in trust to take effect only after the termination of a particular estate until the rights of the remainderman fall into possession."
Argued orally by Julian C. Wilson, for appellant, and by J.W. Dulaney, for appellee.
Appellant filed his bill in the Chancery Court of Tunica County against appellees to confirm his tax title claim to 780 acres of land in that county, being all of fractional Sections 29 and 30 in Township 5, Range 12; the land in each section adjoins the land in the other and constitutes one body of land, 580 acres of which is in Section 29, and 200 acres of which is in Section 30. Appellees filed an answer and cross bill denying the validity of appellant's title and setting up title in themselves, which they prayed to be confirmed. Appellant answered the cross bill denying its material allegations. There was a final hearing on the pleadings and evidence resulting in a final decree in favor of appellees confirming their title. From that decree appellant prosecutes this appeal.
Appellant contends that he got a valid tax title, and, if mistaken in that contention, the claim of title by appellees was barred by the three-year statute of limitations. Hemingway's Code of 1917, Section 2459; Section 2288, Code of 1930.
Appellant's claim of title is based on two tax deeds, one growing out of the land tax sales of 1921, and the other out of the land tax sales of 1930.
At the time of his death in 1915, J.W. Bennett owned the land. By his will he devised it to his widow, Mrs. Clara Bennett for life or widowhood, with remainder to the children of his two nieces living at the death of his wife, and the descendants of such children who should die before his wife. Mrs. Bennett died in January, 1936, The appellees are the four children of J.W. Bennett's two nieces. For the years 1919-20 the land was assessed to estate of J.W. Bennett, that in Section 29 at a valuation of $8,705, that in Section 30 at a valuation of $2,520. At the tax sales in 1921, the land was sold for its taxes. The taxes and damages on that part in Section 29 were $194.31, on the part in Section 30, $56.53. Mrs. Dora Savage purchased the land in Section 29 bidding the amount of taxes and damages due thereon, and L.S. Lake purchased that in Section 30, bidding the amount of taxes and damages due thereon, each receiving a separate deed describing the land sold and the consideration bid.
Through conveyances from Mrs. Savage and Lake, J.T. Puckett acquired whatever title they had by virtue of said tax sales. For the years 1928-29, the entire tract was assessed to J.T. Puckett, that part in Section 29 at a valuation of $6,756, and that part in Section 30 at a valuation of $1,440. The taxes thereon being delinquent, the land was sold at the tax sales in April, 1930, for the taxes, damages, and costs due thereon. The assessment rolls showed opposite the land in Section 29 the amount of taxes and damages charged against it — $156.46, and that in Section 30 showed its taxes and damages to be $35.12. Appellant was the purchaser of the lands in both sections, receiving from the tax collector two separate deeds thereto, one for the land in Section 29, and the other for the land in Section 30, each reciting as the consideration for the conveyance the taxes and damages due on the land conveyed.
Section 3249 of the Code of 1930, which was Section 6962 of Hemingway's Code of 1917, provides, among other things, as follows: "On the first Monday of April, if the taxes remain unpaid, the collector shall proceed to sell the land, or so much and such parts of the land, of each delinquent taxpayer, as will pay the amount of taxes due by him, and all costs and charges, to the highest bidder for cash. He shall first offer forty acres, and if the first parcel so offered do not produce the amount due, then he shall offer another similar subdivision and so on until the requisite amount be produced, or until all the land constituting one tract and assessed as the property of the same owner be offered."
Was each of the tax sales — that of 1921 and that of 1930 — made in violation of this statute and for that reason void? We are of the opinion that both of those questions should be answered in the affirmative. The tax deeds were in the statutory form laid down by Hemingway's Code of 1917, Section 6966, and Section 3273 of the Code of 1930. Leaving off the caption and the blanks for the date and the name of the officer making the conveyance, the form follows: "Be it known, that ____, tax collector of said county of ____, did on the ____, day of ____, A.D. ____, according to law, sell the following land, situated in said county and assessed to ____ to wit: ____ (here describe the land) ____ for the taxes assessed thereon (or when sold for other taxes it should be so stated) for the year A.D. ____, when ____ became the best bidder therefor, at and for the sum of ____ dollars and ____ cents; and the same not having been redeemed, I therefore sell and convey said land to the said ____."
It is at once manifest that the statute was violated in the making of the 1921 sales, for the deeds themselves show that there were two separate and distinct sales — one sale of that part of the tract in Section 29, and another and different sale to that part of the tract in Section 30, one person purchasing that in Section 29, and another person purchasing that in Section 30, the consideration for each sale being the amount of taxes and damages due on the particular piece of land sold. And we think it equally plain that the statute was violated in the making of the 1930 sales.
Appellant received two deeds from the tax collector, one conveying to him the land in Section 29, and the other conveying the land in Section 30, the consideration in each being the amount of taxes and damages due on the particular piece of land conveyed. If there had been only one sale complying with the statute, and two deeds to the purchaser, we might have a different question. To hold that the statute was complied with would mean that the recitals in the deeds were false. If the statute had been complied with in the making of the sales, and two deeds made instead of one, each should have recited as the consideration the aggregate amount of taxes and damages due on the whole tract, instead of reciting the amount of taxes and damages due on the particular tract conveyed. In other words, the consideration in each deed should have been the same. Appellant lay stress on the fact that the conveyances recite that they were made "according to law." That phrase is not a statement of fact; it is a mere conclusion or opinion and must yield to the positive statement of facts in the deeds, which show in unmistakable terms that two sales were made instead of one, each for a separate and distinct consideration. Both tax sales were void and the purchaser therefore got no title. Gregory v. Brogan, 74 Miss. 694, 21 So. 521; House v. Gumble, 78 Miss. 259, 29 So. 71. We do not understand that Lewis v. Griffin, 103 Miss. 578, 60 So. 651, is in conflict with either of those decisions. In that case, there were two tracts separately assessed and conveyed by the tax collector to a purchaser at their sale for delinquent taxes by one deed. The court held that those facts did not raise a presumption that the two tracts were not sold separately as required by the statute since there was no statute requiring separate deeds to be made to each tract sold.
Appellant argues that even though the tax deeds conveyed no title, appellees are barred by the three-year statute of limitations, Section 2288, of the Code of 1930, which is in the following language: "Three years' actual occupation under a tax title bars suit. — Actual occupation for three years, after two years from the day of sale of land held under a conveyance by a tax collector in pursuance of a sale for taxes shall bar any suit to recover such land or assail such title because of any defect in the sale of the land for taxes, or in any precedent step to the sale, saving to minors and persons of unsound mind the right to bring suit within such time, after the removal of their disabilities, and upon the same terms as is provided for the redemption of land by such persons." The evidence tended to show actual occupation by appellant of the land for three years after the expiration of the period of redemption. It was shown, however, without conflict that appellees filed their cross bill in this case within three years after the death of Mrs. Bennett, the life tenant. Appellant's position is that under the statute there is no saving in favor of remaindermen. The three-year statute of limitations is a part of the code chapter on limitations of actions and is a mere statute of limitations. Hamner v. Yazoo Delta Lumber Company, 100 Miss. 349, 56 So. 466. It comes within the general scope and purpose of the entire chapter. There is no decision of this directly in point, but we think Clark v. Foster, 110 Miss. 543, 70 So. 583; and Jordan v. Bobbitt, 91 Miss. 1, 45 So. 311, are strongly persuasive that the statute was not intended to cut off remaindermen. There was involved in the Bobbitt Case a two-year statute of limitations, which provided that no action should be brought for the recovery of property sold by an order of the Chancery Court, except within two years from date of sale. The Clark Case also involved the rights of remaindermen under a statute of limitations (Section 3123 of the Code of 1906). The court held in both cases a right of action of the remaindermen did not accrue until the death of the life tenant. We are unable to see any good reason why this same rule should not be applied to the statute of limitations here involved. We do not think the word "assail" adds any force to the statute. Without it the statute would mean the same thing.
Affirmed.