Cuevas v. Cuevas

• Decision Date: 17 January 1927
• Docket Number: 26130
• Citation: 110 So. 865,145 Miss. 456
• Court: Mississippi Supreme Court
• Parties: CUEVAS et al. v. CUEVAS et al (two cases). [*]

110 So. 865

145 Miss. 456

CUEVAS et al. v. CUEVAS et al (two cases). ^[*]

No. 26130

Supreme Court of Mississippi

January 17, 1927

Division B

. (Division B.)

1. LOGS AND LOGGING. Deed conveying timber held to mean ten year limitation did not begin to run until grantee began to "cut and lumber" standing timber.

Deed conveying timber on certain tracts of land, with provision that it should remain in force for ten years after grantees commenced to cut and lumber, held to mean that ten-year limit should not begin to run until grantee began to cut and lumber standing timber with right to remove down timber without beginning ten-year limit, since the phrase "cut and lumber" must be construed in light of custom as referring to standing timber, and not down timber.

2 TAXATION. Purchaser acquired no title, where board in attempting to fix date of tax sale in July, 1922, ordered sale for July, 1921 (Laws 1922, chapter 137).

Where tax sale not having been made on first Monday in May in accordance with Laws 1922, chapter 137, board of supervisors in attempting to pass order fixing date for sale in July 1922, or dered sale to be made in 1921, and subsequently undertook to pass another order fixing proper date, purchaser at such sale acquired no title, since board of supervisors had no authority at subsequent term to correct previous order, and order fixing impossible day was equivalent to order fixing no day at all.

3 STATUTES. Laws authorizing tax sale must be strictly construed as to time and place of sale.

Tax sales are proceedings in invitum, and statutes authorizing such sales must be strictly construed as to time and place of sale.

4. TAXATION. Minors' remedy to redeem from tax sale is in equity.

Remedy of minors who are entitled to redeem from tax sale, on account of their disability, is in equity.

5. INFANTS. Minors with right of redemption from tax sale may have interests sold if necessary to raise funds for redemption (Hemingway's Code, section 2833).

Where minors owning an interest in land have right to redeem from tax sale, and one of cotenants owns standing timber thereon, minors have right to have their interest sold if necessary to raise funds to redeem land from tax sale, since under Code 1906, section 3521 (Hemingway's Code, section 2833), interest of parties owning land and timber was not such as authorized partition.

HON. V. A. GRIFFITH, Chancellor.

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

Separate suits by C. E. Cuevas and others, and by Ethel Cuevas and others, against Roman Cuevas and others, which were consolidated and tried together. Decree dismissing both bills, and complainants appeal. Affirmed in part, and in part reversed and remanded.

Affirmed in part, and reversed in part and remanded.

T. M. Evans and M. D. Brown, for appellants.

I. Section 7012, Hemingway's Code (section 4375, Code of 1906) fails to set out the method of procedure by which infants or persons of unsound mind may establish his or her interest in the land which he or she seeks to redeem, or to designate the court or officer before whom the interest of the minor or insane person shall be established and before whom the redemption shall be made; but the inference is that the land would be redeemed directly from the purchaser at the tax sale after the land had been purchased by an individual, since it expressly provides that the minor or the insane person shall pay to the person entitled the value of all permanent improvements on said land made by any claimant of it under the tax sale. Under these circumstances we must look to some other provision of law to ascertain how this redemption can be made and how the interest of the minor or insane person can be established. See section 310, Hemingway's Code (section 2790, Code of 1906), providing how title to property acquired by descent may be made. See also section 311, Hemingway's Code (section 2791, Code of 1906).

In this case the heirs are fully set out and the assignees of the heirs have been made defendants. We insist that the heirs of Roman Cuevas, deceased, could redeem only such interest in the land as they established by some judicial proceeding. Since the chancery clerk has no authority to cancel the deed of a purchaser after the period of two years for redemption has expired and a title has become complete in the purchaser, the tax deed remains in the hands of the chancery clerk until the end of two years from the date of the sale; then the chancery clerk delivers the deed to the purchaser which is then placed of record and the land becomes the land of the purchaser as shown by the record of deeds of the county. And the deed which had been recorded cannot be changed or altered except by a court of competent jurisdiction to inquire into the rights and equities of all of the parties interested in said land.

II. As to the second question: Can a minor have a sale for partition of land in order to raise money in which to redeem his or her interest from a tax sale? We think this question has been thoroughly settled in this state in Johns v. Smith, 56 Miss. 727, 732; Bacon v. Gray, 23 Miss. 140; 2 Story Eg. Jur., section 1327.

III. The third question involved is: When did the time limit of ten years begin to run, under the timber deed? We will consider first the question of when the ten years time began to run on cutting timber. The deed under which the Ingram-Day Lumber Company claims the timber on the land involved in this suit was dated on October 20, 1906. This was a sale of lying timber as well as standing timber. Clark v. Ingram-Day Lumber Co., 90 Miss. 487, clearly settles this case.

The testimony of all the witnesses is that the blown down timber, the dead timber, and the trees with broken tops were cut and removed about April, 1907. It is shown by the evidence that about the same amount of timber was cut from each forty by the witnesses. We also refer the court to the following cases on this point: Perkins et al. v. Peterson (Ga.), 35 S.E. 319-21; Mattox v. Baxter et al. (Ga.), 32 S.E. 94; Gray Lumber Co. v. Harris et al. (Ga.), 68 S.E. 749; Call et al v. Jenner Lumber Co., 165 P. 23. In the light of these cases, the time limit began to run April, 1907.

IV. The fourth question involved is the validity of the tax deed. It is insisted that the tax deed was void for the reason that it was not filed with the chancery clerk on the day of the sale. We submit that the evidence is sufficient to sustain the validity of the filing of the deeds and of the lists of land sold, since the evidence is uncontradicted that the tax collector filed the list of land sold to individuals and the deed with the chancery clerk as soon as it could be done after the sale, taking into consideration the number of sales made and the time required to do the work.

There is no evidence to show that there was a failure on the part of the assessor to give notice as required by law and that the notice is presumed to have been given; however, there is no law requiring notice of the filing of the assessment rolls at the time fixed by law. As to the further proposition which alleges that the board of supervisors required that the land be sold on the first Monday of July, 1921, instead of the first Monday of July, 1922, the record shows that it was ordered to be sold on the first Monday of July, 1922.

The clerk in entering the order on the minutes inadvertently wrote 1921 instead of 1922 and the board of supervisors at a subsequent meeting ordered the minutes corrected. The evidence shows that the order really required the sale to be made on the first Monday in July, 1922, and that the sheriff and tax collector proceeded in all respects to advertise and sell the lands on Monday, July 3, 1922, as required by the order.

The clerk having made a clerical error in entering the order on the minutes of the board of supervisors, the board had a perfect right to correct its own minutes in order to make the minutes speak the truth. Stokes v. Shannon, 55 Miss. 583.

It is further objected that the judgment nunc pro tunc was void for want of notice to the opposite party. It is difficult to see how the defendant in error can complain of this, since it consisted only in the entry of a judgment in his favor, which the clerk had omitted to enter and which the plaintiff in error merely desired to have entered in order that he might appeal from it.

While it is generally true that such judgment cannot be entered without notice, a different rule prevails where the record itself affords a conclusive date for sustaining the motion without resort to extraneous evidence--in this case the bill of exceptions, which had been signed, sealed, and made a part of the record at the preceding term, showing the action of the court in overruling the motion. Freeman on Judg., section 64; Fatan v. Carrel, 1 Minor 170; Allen v. Bradford, 3 Ala. 281; Glass v. Glass, 24 Ala. 468; 15 R. C. L., page 625; Jacks v. Adamson, 60 A. S. R. 751; Harris v. State of Nebraska, 97 A. S. R. 635; Stern v. Montana, 108 A. S. R. 433; Liddell v. Bodenheimer, 115 A. S. R. 42.

Ford, White, Graham & Gautier, for appellee, Ingram-Day Lumber Company.

We call the court's attention to the fact that C. E. Cuevas is no heir to Roman Cuevas. He brought these suits after having obtained a lot of assignments from minors of their alleged interest. In cases where the minors themselves do not make the assignment, it is made by next friend, not acknowledged or recorded, and the court would have been well justified in dismissing the bills for this reason alone. Furthermore, as to some of the minors joined by Cuevas with him as complainants, he first used the father of such minors as next friend. The father...