Darrington v. Rose

• Decision Date: 20 February 1922
• Docket Number: 22298
• Citation: 128 Miss. 16,90 So. 632
• Court: Mississippi Supreme Court
• Parties: DARRINGTON v. ROSE et al

90 So. 632

128 Miss. 16

DARRINGTON v. ROSE et al

No. 22298

Supreme Court of Mississippi

February 20, 1922

1 TAXATION. Notice by clerk need not state the exact date of filing of assessment rolls.

Under section 4303, Code 1906 (section 6937, Hemingway's Code) which provides that, when the tax assessor returns and files the as sessment rolls in the office of the clerk, he shall give notice thereof, as well as of the date of the meeting of the board to consider the same, by publication in some newspaper published in the county, etc., which shall be notice to the taxpayers of the county of the contents of such rolls so filed, and all taxpayers shall be held to have notice of the time of filing objections to such assessment rolls and of the time of the hearing of the same by the board. Held, it is not required that such notice so published by the assessor shall state the exact date of the filing of such rolls with the clerk; it being necessary to state only that such rolls are on file.

2. TAXATION. Any person interested in the land is given a statutory right to redeem from tax sale.

Under section 79 of the Constitution of 1890, which secures the right of redemption of lands from tax sale "in favor of owners and persons interested in such real estate," and section 4330, Code 1906 (section 6964, Hemingway's Code) which provides for the redemption of lands sold the state for taxes by "the owner of the land or any person interested," and section 4338, Code 1906 (section 6972 Hemingway's Code), which gives the right of redemption of lands from tax sales to individuals by "the owner of the land or any person for him, held, although there is some variation in the language used in said constitutional provision and statutes as to who is given the right to redeem, nevertheless, construed together, the right to redeem is as broad in one as in the other, and any owner of land, or person interested therein, is given the right to redeem.

3. TAXATION. Redemption statutes are to be liberally construed in favor of redemption, and such right is not confined to the owner of the fee.

The statutes allowing the land to be redeemed from tax sales are to be liberally construed in favor of the person seeking to redeem, and the right to redeem is not confined to the owner of the fee, but to any person who has such an interest in the land as entitles him to the rents and profits and income therefrom.

4. TAXATION. Party owning one-half undivided interest, with right to rents and profits through agreement with cotenant, may redeem.

Where the person seeking to redeem was, at the time of the tax sale and at the time of the offer to redeem, claiming to be the owner of a one-half undivided interest in the land sought to be redeemed, and the right to receive during his lifetime, and was receiving, the entire rents and profits from the said land by virtue of an agreement with his cotenants, which claim of ownership and right to the rents and profits of said land was with the consent of the other parties in interest, inquiry will not be made as to whether such claim is valid or not but such person, under the Constitution and statutes referred to, has such ownership or interest in the land as entitles him to redeem.

HON. V. J. STRICKER, Chancellor.

APPEAL from chancery court of Yazoo county, HON. V. J. STRICKER, Chancellor.

Bill by John Darrington against Joe Rose and others. From a final decree denying the prayer of plaintiff's bill, plaintiff appeals, and Jacob Rose and Milton Cannon prosecute cross-appeals. Affirmed on direct and on cross-appeal.

Case affirmed on direct and cross appeal.

E. L Brown, for appellant.

The notice complained of was sufficient. This is a vain point. The notice in each of the four insertions of the paper, except the second one, printed August 13th, is as follows: "Notice to taxpayers. Notice is hereby given, as required by section 4303 of Mississippi Code of 1906, that, as county assessors of Yazoo county, Mississippi, I have this day filed with the clerk of the board of supervisors, of said county, the land and personal rolls of said county for the year 1915. The board of supervisors of said county will meet the first Monday in September, and sit for the week, or longer if necessary, for the purpose of equalizing assessments, and hear and determine objections to any assessment on said roll.

"Yours truly,

"LEE GIBBS, County Assessor."

"Aug. 2, 1915.

The only complaint of this notice is that, in the publication of the notice in the issue of the 13th Aug. 2, 1915, is omitted, and county assessors, after the name of the assessor, is omitted.

The notice says that "as county assessor of Yazoo county, Mississippi, I have filed," etc. It was surplusage to add "county assessors," in any one of the issues. "I, as county assessor of Yazoo county, Mississippi," signed Lee Gibbs, sufficiently designates his official capacity. This is certain. Gibbs v. Dortch, 62 Miss. 671.

The complaint that he failed, in the one notice, to give the date of the filing of the roll, is without merit. In the first place the statute does not require that date to be given, the date required being the meeting of the board of supervisors to equalize. He need not have had "Aug. 2, 1915," in any one of the issues. The real date of the notice was the date of each issue of the paper, four dates of notice.

IV. The sale of one-half interest in south quarter of lot 8, Pugh's Square was invalidated by failure to file list. Section 4367, Code of 1906 (section 7006, Hemingway's Code), requires that, in the case of special sales for taxes, the list shall be immediately filed with the clerk. In this case, it was filed eighteen days after the sale, and thereby the sale was avoided. 112 Miss. Fairley v. Albritton, 83 So. 801.

In that case, the list was filed thirty-four days after the sale, and the sale was held invalidated thereby, the court construing the word "immediately" to mean "as soon as practical, under the circumstances, after the sale, and not within a reasonable time, thereafter."

Sheriff Stubblefield testified he was busy, and hence the delay, but his Honor sustained objections to this conclusion, calling for what kept him busy and he could assign nothing, being able to point out only six processes served, in addition to the routine business. He had his regular office force of two in the office, and they were the ones who performed the duty of making out the list. There were eighty-two sales, and "as soon as practical under the circumstances, after the sale," was two to four days. There was shown no semblance of excuse for the delay of eighteen days.

It is respectfully submitted that the decree of the court below should be reversed.

Campbell & Campbell, for appellees and cross-appellants.

We state as a legal proposition that the appellee, Joe Rose, does not have to be the owner of the fee in said lot in order that he may be permitted to redeem, but he has the right to redeem if he had any right, ownership, or interest in the property that would suffer if he did not protect the same by redemption. 26 R. C. L., section 387; Redemption by Person Other than Owner, page 430.

A right of redemption given to the owner of land, is not confined to the owner of the fee, but is generally held that it comports with the words and spirit of the law, to consider any person who has any interest in lands' sold for taxes as the owner thereof for the purpose of redemption. Any right which in law or equity amounts to an ownership in the land, any right of entry on it, to its possession or enjoyment, or any part of it, makes the person the owner so far as it is necessary to give the right to redeem. Thus it has been held that a woman may redeem land in which she has an inchoate right of dower. Citing Dubois v. Hepburn, 10 Pet. 1 O. U. S. (Leed) 325, and other cases there referred to.

We direct the court's attention to the text laid down in 37 Cyc., page 1383; Karr v. Washburn, 56 Wis. 303, 14 N.W. 189; Bond v. Greer, 56 Miss. 710; Schlottman v. Hoffman, 73 Miss. 188.

We come now to a discussion of whether or not the sales under which the defendants were deprived of their property were in fact valid. We submit that the sales were not valid because the assessment under which they were made were void.

In the case of Cameron v. Whittington, 120 Miss. 595, the court in construing section 4303 of Code of 1906, which requires the assessor to publish notice for three weeks of the meeting of the board of supervisors to hear objections to the assessment roll is mandatory, and without a compliance with this section, a tax sale made thereunder is void. The court in the case now under discussion, cites the case of Ponder v. Martin, 80 So. (Miss.), which we ask the court to read.

In Cameron v. Whittington, supra, the court not only held that section 4303 of the Code of 1906, is mandatory, but, being a substitute for summons must be strictly followed and complied with. The assessor attempted to comply with this section. Let us see if he did. We will first copy that part of this section of the code bearing on the subject under discussion: "Assessor to give notice of return and filing of roll. When the assessor returns and files the assessment roll in the office of the clerk of the board of supervisors he shall give notice thereof, and the date of the meeting of the board to consider the same, by publication in some newspapers published in the county, or if none be published, by posting at the court house for the space of three weeks, etc."

What is it that the assessor is required to do? To give notice of the returning and filing of the assessment roll in the office of the clerk of the board of supervisors and the date of the meeting of the board to...