Bousquet v. Brown

• Decision Date: 19 November 1928
• Docket Number: 27430
• Citation: 152 Miss. 171,119 So. 166
• Court: Mississippi Supreme Court
• Parties: BOUSQUET v. BROWN. [*]

119 So. 166

152 Miss. 171

BOUSQUET v. BROWN. ^[*]

No. 27430

Supreme Court of Mississippi

November 19, 1928

Division B

Suggestion of Error Overruled Dec. 17, 1928.

APPEAL from chancery court of Harrison county, HON. V. A. GRIFFITH Chancellor.

Suit by Cecil L. Brown against Joseph Bosquet. Decree for complainant and defendant appeals. Reversed and remanded.

Reversed and remanded.

Wadlington & Corbon, for appellant.

I. The lower court erred in striking the defendant's answer from the file.

II. The patent attached to the original bill was insufficient to support a confirmation of title.

III. The final decree is void for the reason that the complainant filed an amended bill of complaint in the matter and took a decree pro confesso and final decree without giving notice of the filing of same to the defendant or his attorneys, as provided by law.

I. See section 8249, Hemingway's Code 1927 (section 4330, Code 1906). The appellant here, an aged colored man, in good faith attempted to redeem his land from the tax sales, taking the matter up with the land commissioner who took appellant's money and executed full release of the state of Mississippi on said land as shown by the answer and exhibit set forth at pages 15 to 19 of the record.

The redemption certificate of the state and land commissioner, above mentioned, was issued to the appellant within two years from the date of the tax sale on which the appellee herein bases his title.

The record is silent as to the amount of taxes due on the land involved in this suit at the time of the tax sale in 1917 and 1918, and the presumption of law is that the amount collected by the land commissioner was the amount necessary to redeem it from all claim of the state against said land. Redemption statutes are to be liberally construed in favor of redemption. Darrington v. Rose, 128 Miss. 16, 90 So. 632. See, also, sec. 8279 of Hemingway's 1927 Code.

It appears from the record that the land here involved was sold on two succeeding years. After both sales, the owner attempted to redeem the land. There is no record to the contrary, so it is presumed that a sufficient amount was paid to the land commissioner for a redemption from all taxes. See Brannan v. Lyon, 86 Miss. 401, 38 So. 609.

II. The forfeited tax land patent exhibited with the original bill of complaint was issued "by virtue of the provisions of chapter 77, section 2912 of the Code of the state of Mississippi 1906." See Huber v. Freret, 103 So. 3; Jenkins v. Bernard, 114 So. 480.

III. See Griffith's Chancery Practice, section 394, which reviews our statutes on the matter. The statutes applicable being: Sections 369 and 370 of Hemingway's 1927 Code (sections 594 and 595 of Code 1906).

We feel, therefore, that this case should be reversed and dismissed for the reason that the appellant herein had a full release from the state of Mississippi as set out in the first point of argument above.

If this court does not see fit to dismiss the suit, then it should be remanded in order that the defendant may be given opportunity to answer the bill of complaint as amended.

M. D. Brown, for appellee.

The redemption statute, section 8249, Hemingway's Code 1927 (Section 4330, Code 1906), provides that, at any time, within two years, by paying the state land commissioner the amount of all taxes, and all costs incident to the sale, and all taxes accrued thereof, since the sale, etc., the owner of the land may redeem it, which evidently was not done in this case, as the certificate of the land commissioner plainly and conclusively shows on its face, that only the taxes, accrued under the tax sale of April 1, 1918, were paid.

The case of Darington v. Rose, cited by counsel for appellant, is no authority, for the case at bar, as that case was dealing with the subject of an undivided interest of the parties in that case.

The case of Brannan v. Lyons, cited by appellant, is more nearly in point, and in that case, the court upheld the claim, as contended by the appellee in the instant case, and upheld the confirmation of the tax title, where there had been two sales, almost exactly the case at bar.

The cases of Huber v. Ferret, and Jenkins v. Bernard, cited by appellant, do not touch the questions involved in the case at bar, and are foreign to it. See Erwin v. Lee, 79 So. 104; K. C. Lumber Co. v. Moss, 80 So. 638.

Section 395, Griffith's Chancery Practice, properly states the rule, with reference to amendments. See, also, Griffith's Chancery Practice, secs. 32, 41, 46, 90, 440, 561.

OPINION

ANDERSON, J.

Appellee filed his bill in the chancery court of Harrison county against appellant to confirm his title to a lot, described in the bill, situated in the city of Biloxi, in said county. A decree pro confesso and a final decree were rendered in his favor. From the final decree appellant prosecutes this appeal. The case is here on the pleadings, decree pro confesso, and final decree alone.

Appellee set out in his bill that he was the owner in fee of the lot involved, which is fully described in the bill; that the lot was patented by the United States to Angelique Frazier, on July 7, 1847; that on the 2d day of April, 1917, the lot was sold by the tax collector of Harrison county for the state and county taxes due thereon for the year 1916, and was purchased by the state; that thereupon the tax collector of Harrison county, within the time and in the manner prescribed by law, certified to the land commissioner the list of such sales to the state, including said lot; that said lot remained unredeemed from said sale for more than two years; that the state thereby became the owner of said lot. There was attached to appellee's bill the list of lands forfeited to the state for their taxes at said sale, which included the lot involved. The bill alleged that on the 11th day of August, 1926, appellee purchased said lot from the state, the land commissioner executing to appellee a forfeited tax land patent therefor. A copy of the patent was attached to the bill. The bill set out further that at the time of said tax sale the lot involved was assessed to appellant, and others whose names are given in the bill. The forfeited tax land patent, attached to the bill as an exhibit, is in the usual form. It recites a consideration of twenty-five dollars, and is dated August 11, 1926.

Appellant answered the bill, denying appellee's ownership of the lot, but admitting that the lot was forfeited to the state on April 2, 1917, for its taxes of 1916, as alleged in the bill. The answer denied that the lot remained unredeemed from that tax sale, but averred that, on the contrary, appellant redeemed the same from the state on the 1st day of October, 1918, before the two-year period for redemption provided by statute had expired. Appellant set out as an exhibit to his answer the land commissioner's certificate of redemption of the lot, a part of which certificate is in this language:

"I hereby certify, that Joseph Bousquet has this day paid to me the sum of twenty dollars and seventy cents, which is in full for the redemption of the following lands in Harrison county, held for the several taxes and charges thereon, said lands having been sold to the state by the tax collector of said county, on the first day of April, 1918:

"Description of land 1 lot S by Bertrand, E by Fayard St., N by Davis, W. by Anglado Alley, Section , Township 7, Range 9, Acres .

"I, therefore, by virtue of the power vested in me by law, hereby release and discharge all claims of the state upon said lands.

"Witness my hand and official seal, at office, in city of Jackson, this first day of October, 1918."

Appellant averred further, in his answer, that,

"Defendant therefore alleges that whatever claim the state of Mississippi had upon said land from the 2nd day of April, 1917, was released and discharged by said redemption certificate dated October 1st, 1918. That the name 'Joseph Bousquet' in said redemption certificate is the same defendant as J. O. Bousquet or Joe Bousquet. And that the description of said land in said redemption certificate is the identical piece or parcel of land as described in said bill of complaint in Cause No. 9585 of the chancery court of Harrison county, Mississippi. That said redemption certificate is duly recorded in the record of deeds of Harrison county, Mississippi, in Book No. 122, on pages 595-596, and was of record when the said complainant, Cecil L. Brown, obtained a patent to said land from the state of Mississippi."

On motion of appellee, appellant's answer was stricken from the files, on the ground that it constituted no defense to appellee's bill. Thereupon appellee, by leave of the court, filed an amendment to the original bill, the material part of which follows:

"Now comes the complainant, Cecil L. Brown, in the above-entitled and numbered cause, and shows unto the court, that since filing his said bill...