Day v. Smith

• Decision Date: 18 December 1905
• Citation: 87 Miss. 395,39 So. 526
• Court: Mississippi Supreme Court
• Parties: REUBEN N. DAY ET AL. v. JAMES M. SMITH ET AL

39 So. 526

87 Miss. 395

REUBEN N. DAY ET AL. v. JAMES M. SMITH ET AL

Supreme Court of Mississippi

December 18, 1905

FROM the chancery court of Scott county, HON. JAMES L. MCCASKILL Chancellor.

Day and others, the appellants, were complainants in the court below Smith and others, the appellees, were defendants there.

The object of the suit was to remove clouds from the title to real estate.

The appellants, the complainants in the court below, alleged in their bill that they were and are the rightful owners of the land in controversy and deraign their title from one Jeffcoat, who acquired the land in 1889 from the state of Mississippi, the land having been sold to the state in 1876 for the taxes of 1875.

One James F. Smith patented the land from the United States government in 1836. In May, 1861, while the state of Mississippi was in open rebellion against the government of the United States, the land was sold for the taxes of 1860 by the tax collector of Scott county, Mississippi, and purchased by one A. B. Smith. The heirs of the patentee, James F Smith, and the heirs of the tax purchaser, A. B. Smith, and their vendees, were made defendants to the suit. Some of the defendants--Mrs. Elizabeth F. Graham, Mrs. Beatrice F. Oatis and Samuel H. Kirkland--answered the bill and made their answer a crossbill, praying cancellation of complainants' assertion of title as a cloud on their title to the land in dispute.

The complainants demurred to the cross-bill, assigning amongst other grounds the fact that the state of Mississippi in 1861--the time of the tax sale to A. B. Smith--was engaged in levying war against the United States, and the tax sale was therefore void, and that it was void as having been made in aid of the rebellion.

The demurrer was overruled, and complainants appealed to the supreme court.

[This case was once before in the supreme court, and a decision then made is reported--Day v. Oatis, 85 Miss. 128.]

Decree reversed and cause remanded.

Green &amp Green, Ricketts & Peyton, and Jeff Kent, for appellants.

The tax deed is void because, to obtain it, it was necessary to pay war taxes to the state in aid of the war against the lawful authority of the United States.

It is provided by Code 1857, ch. 3, art. 39, p. 80:

"The collector shall file all deeds for land sold to the state, or other persons, in the office of the clerk of the probate court of the county, on or before the second Monday of May, there to remain for two years from the date of the sale unless sooner redeemed; and the owner of such land, or any person for him, may redeem the same within two years by paying to the said probate clerk the whole amount of tax for which such land was sold, with all costs and charges consequent upon said sale, and fifty per centum damages upon the amount of said tax and costs, and also all state and county taxes that have accrued on said land since said sale, and also five per centum on the whole amount of such redemption for the compensation of the said clerk for making the same," etc.

By Code 1857, ch. 3, art. 43, p. 82, it is provided:

"When any land shall have been sold for taxes and purchased by any person other than the state, the taxes thereon for all succeeding years until the same shall have been redeemed shall be charged by the collector to such purchaser or his assigns, and collected of him or them in like manner as other taxes due by him or them, and such land shall be liable to be sold for the taxes of such purchaser or his assigns, and if sold for the taxes of such purchaser or his assigns, and not redeemed by him or them, the persons as whose property it was assessed shall be entitled to redeem the same from the second purchaser, on payment only of the amount due in such second sale."

From these two sections it is perfectly apparent that when Smith paid out fifty dollars for ten thousand acres of land on May 6, 1861, the deed therefor was deposited with the clerk of the probate court, there to remain until May 6, 1863, and it is further manifest that to obtain the deed thereto it was essential that Smith should pay the taxes accruing thereon in the years 1861 and 1862. Under the express terms of the statute, taxes for these several years were charged against him, and the payment thereof was a condition precedent to his ever obtaining a deed.

The period of redemption must have expired and the owner failed to redeem before Smith could have become entitled to the deed conveying the land. But the taxes of 1861 and the taxes of 1862, which must have been paid by Smith, were composed of many illegal elements--taxes levied in direct aid of the civil war then being carried on against the lawful authority of the United States. Shattuck v. Daniel, 52 Miss. 836.

These proceedings being utterly void, the land remained to the original owner unaffected by the sale. It continued to be subject to assessment as his property. Dogan v. Griffin, 51 Miss. 782; Beard v. Green, 51 Miss. 856. To obtain the deed in question, Smith paid the taxes of 1861 and the taxes of 1862, as he was required to do by the statutory law in force at the time, and in making these payments he directly contributed money in aid of the war by the payment of unlawful war taxes. His act in so doing was illegal--absolutely unlawful. It was, in law, a contribution to carry on an illegal war, and such payment rendered the transaction in which it was made void. Railroad Co. v. State, 46 Miss. 157; Railroad Co. v. State, 52 Miss. 878; Texas v. White, 7 Wall., 732.

It was absolutely beyond the power of the probate clerk to accept anything but the whole, because he was an officer of those then in authority, deriving his rights, if any, from the confederate authority then established and which had dominion over the state; and this officer could not, and most assuredly would not, have accepted the tender of anything less than the total amount of taxes, both legal and illegal. It was his duty to his principal to do so; it was beyond his power to do otherwise. As wisely said in Brown's Legal Maxims (7th ed.): "It is a maxim of our legal authors, as well as a dictate of common sense, that the law will not itself attempt to do an act which would be vain--lex nil frustra facit; nor to enforce one which would be frivolous--lex nominem cogit ad vana sueinutilia. The law will not, in the language of the old reports, force any one to do a thing which will be vain and fruitless."

In the instant case the positive mandate of the law of the government to which the clerk was in fact subservient forbade any other course, and to suggest such a course would have been a breach of official duties. The very money that was lawful in the United States was illegal in making these redemptions, and was not available, and the money which would have had to be made use of in paying these taxes was itself unlawful under the laws of the United States.

Amis & Dunn, for appellees.

The tax sale in this case was made on the first Monday in May, 1861, for delinquent taxes for the fiscal year 1860, and a deed was duly executed and delivered, pursuant to said sale. By the act of February 10, 1860, this deed was prima facie evidence of title in the tax purchaser. In Sigman v. Lundy, 66 Miss. 522, this court, construing that act, says:

"The act was to provide for the better security of tax titles. It affords a remedy by which the holder under tax title might call into court all persons claiming or having any interest in such land which existed at the time the same was sold for taxes, and settle once for all the validity of his title. As to the sales thereafter to be made, it adds the assurance that after the lapse of five years no hostile claim could be asserted; whether the purchaser at tax sale or the former owner was in possession of the land or whether the land was occupied or vacant, the security afforded by the act existed. The provision as to future sales was intended to be, and was, an irrepealable and irrevocable stipulation that, after the lapse of time named, no assailment of the title should be made. It was, and was intended to be, a part of the contract into which the purchaser would enter--an inherent, continuing element of right secured, running with the land, and a perpetual security of the title."

To the same effect, see Nevin v. Bailey, 62 Miss. 433; Dingey v. Paxton, 60 Miss. 1038; Carlysle v. Yoder, 69 Miss. 384 (S.C., 12 So. 255); Gibson v. Berry, 66 Miss. 515 (S.C., 6 So. 325); Jonas v. Flanniken, 69 Miss. 577 (S.C., 11 So. 319); Cole v. Coon, 70 Miss. 634 (S.C., 12 So. 849).

We therefore contend that the deed in question is prima facie evidence of title in A. B. Smith, the tax purchaser, to the extent that the mere introduction of the deed in evidence is prima facie proof that the levy, assessment, and sale, and all steps precedent thereto, were legal and valid. We, of course, understand that it is only prima facie of these facts, and that this presumption may be overcome by actual proof on the hearing of the case, or by facts of which the court itself will take judicial notice. We understand that, if the assessment had been made under an unconstitutional act of the legislature, or if the levy of the tax was unlawful, or if any other matter or thing existed at the time of or prior to the tax sale, which was of such nature as that the court would take judicial notice of it, which would injuriously affect the validity of the tax sale, then it would be proper for the court to consider such matter on demurrer to the bill, without the necessity of proof of such matter.

In the present case, however, there is no act or thing, of which the court will take judicial notice, that would in any way affect injuriously the validity of the tax sale made on...