Brannon v. Lyon

• Decision Date: 12 June 1905
• Court: Mississippi Supreme Court
• Parties: HENRY BRANNAN v. EMILY C. LYON

38 So. 609

86 Miss. 401

HENRY BRANNAN v. EMILY C. LYON

Supreme Court of Mississippi

June 12, 1905

FROM the chancery court of Jackson county, HON. THADDEUS A. WOOD Chancellor.

Mrs Lyon, the appellee, was complainant, and Brannan, the appellant, defendant in the court below. From a decree in complainant's favor the defendant appealed to the supreme court.

The object of the suit was to confirm two tax titles to lands. The first was predicated of a sale made on March 7, 1898, for the taxes of 1897. The other was based upon a sale made March 6, 1900, for the taxes of 1899. Defendant admitted that the sales were made as alleged, but defended on the ground that he had paid the taxes on the lands sold in 1898; and, as to the lands sold in 1900, his answer sets up the defense that he tendered to the tax collector on November 21, 1899, all the money due for the taxes on the lands sold, but the tax collector refused to receive it, saying that some other parties had paid the taxes on the land and that nothing was due for taxes for the year 1899. There was no testimony to sustain the answer as to the payment of the taxes on the lands sold in 1898, but Brannan, the appellant, testified that he had tendered the taxes due on the lands sold in 1900 to the tax collector on November 21, 1899, and was told by him that some one else had paid the taxes due, and that officer refused to take the money tendered, and further that the tax collector handed him a written list of lands on which the land in question was shown to have been paid upon by another. This testimony was uncontradicted.

Decree reversed.

C. H Wood, for appellant.

We first note that the appellant, Brannan, in his answer and in his testimony states that on November 21, 1899, he tendered to the tax collector all the money for the taxes due and owing on the W 1/2 of N. E. 1/4, and E 1/2 of N.W. 1/4, sec 7, T. 6, R. 4, West. The tax collector refused to take the money, for the reason, he said, some one else had paid the taxes. This testimony is uncontradicted, but is corroborated by the list of his lands furnished by the tax collector marked "pd." Was this tender of the taxes by Brannan sufficient in law to prevent a sale for delinquent taxes?

The counsel for the appellee in the court below contended that nothing but the prescribed tax receipt, as provided by Code 1892, § 3807, could be shown to invalidate a tax sale. This view was upheld by the court. The court completely ignored sec. 3817 of the code, which says: "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 or invalidate the conveyance, unless it appears before the sale the legally chargeable tax on the lands was paid or tendered to the tax collector." This section is the same as Code 1880, § 528.

In Lewis v. V. NN& M. R. R. Co., 67 Miss. 85, Judge Campbell says, "And this (the tax) not having been tendered before sale, it was legally sold."

In Perret v. Borries, 78 Miss. 936, the owner was allowed to show by parol testimony that she had paid her taxes on the lands sold, but that the tax collector had misdescribed the lands in the tax receipt. This Court has held on the construction of Code 1892, § 3807, "that it means that such receipt is the only receipt valid in favor of the collector, and it was never intended to take from one who had actually paid his taxes on his estate for failure of the officer to give the precise form of receipt called for by the statute."

"A bona fide attempt to pay, frustrated by fault of the tax officer, is equivalent to actual payment, and will bar a sale." 25 Am. & Eng. Ency. Law, 284.

"A sale after payment or tender conveys no title to the purchaser." Ib. "If a party offers and is ready to pay the taxes, a refusal to receive them renders a manual tender unnecessary." Truey v. Irwin, 18 Wall 549; Atwood v. Weems, 96 Otto, 138.

"A lawful tender of taxes to an officer authorized to receive it is equivalent to payment of the tax, and will avoid a subsequent sale." Schenck v. Pary, 1 Dill., 267.

"To authorize a tax collector to sell property to enforce payment of taxes, there must be both a legal disability on the part of the owner to pay the taxes and a legal default in making payment." Green v. Craft, 28 Miss. 70.

"Tender of the taxes by any one who has the right to make payment is effectual to prevent a sale, whether the tender is accepted or not."2 Cooley on Taxation, 808; Black on Tax Titles, sec. 158.

Ford & White, for appellee.

As to the tax sale made in the year 1900 for the taxes of 1899, the sole defense interposed in this case was that no taxes were due because the taxes had actually been paid by the Delta &amp Pine Land Company, and that appellant offered to pay the taxes on it, but was told by the tax collector that the Delta & Pine...