Dunham v. Davis, 17121

• Decision Date: 20 February 1956
• Docket Number: No. 17121,17121
• Citation: 91 S.E.2d 716,229 S.C. 29
• Court: South Carolina Supreme Court
• Parties: Elijah DUNHAM, William Dunham, Ben Dunham, Cecily D. Bethea, Floretta Dunham, William Graves, Irena G. Williams, Charlie Lee Wright, Annie Mae Wright, Mae Ola W. Brown, Gracie Wright and Lou Thelma W. Johnson, Respondents, v. St. Clair DAVIS, Appellant.

Page 716

91 S.E.2d 716

229 S.C. 29

Elijah DUNHAM, William Dunham, Ben Dunham, Cecily D. Bethea Floretta Dunham, William Graves, Irena G. Williams, Charlie Lee Wright, Annie Mae Wright, Mae Ola W. Brown, Gracie Wright and Lou Thelma W. Johnson, Respondents, v. St. Clair DAVIS, Appellant.

No. 17121.

Supreme Court of South Carolina.

Feb. 20, 1956.

J. Malcolm McLendon, Woods & Woods, Marion, for appellant.

Scott & Tyson, Florence, George W. Keels, Florence, J. Ralph Gasque, Marion, for respondents.

LEGGE, Justice.

Respondents sued to recover from appellant possession of a tract of land in Marion County, and for damages resulting from his alleged unlawful entry and continued trespass thereon. He answered, claiming title under a tax deed, and also by adverse possession; and further alleged that he was the holder of a mortgage over the property, foreclosure of which, together with reimbursement for payments made by him for taxes, was prayed in the event that respondents be held to have any interest in said lands. In the trial of the case, before a jury, the presiding judge ruled that appellant's claim of title under the tax deed was invalid, and submitted to the jury the issue of adverse possession, upon which the jury found in appellant's favor. Thereafter the trial judge granted respondent's motion for judgment notwithstanding the verdict; and this appeal followed.

Appellant's exceptions involve two questions, which he states as follows:

1. Did Act No. 259 of the 1947 Acts of the General Assembly, Act May 12, 1947, 45 St. at Large, p. 530, have the effect of validating his tax title and barring respondents' claim of title?

2. Was the evidence sufficient to require submission to the jury of appellant's claim of title by adverse possession?

The tract in question, comprising some three hundred fifty acres, was owned by W. A. Dunham at the time of his death, intestate, in 1913, survived by his widow and six children, who continued to occupy it. No administration was had on Dunham's estate. In 1931 the widow and one of the children died, both intestate, the latter leaving as her heirs seven children who, with the five living children of W. A. Dunham, are respondents here. On December 3, 1935, the tax collector of Marion County levied upon the property under tax execution issued against 'Est. W. A. Dunham'.

During her life, W. A. Dunham's widow had become indebted to appellant's father, J. C. Davis; and to take care of that indebtedness the five living children and one of the grandchildren executed and delivered to J. C. Davis after her death their promissory note dated December 31, 1935, in the amount of seven hundred dollars, payable on November 1, 1936, with interest at the rate of seven per cent, and a mortgage securing the same and covering the property in question. This mortgage was recorded on the date of its execution, and, with the note secured by it, was assigned on the same day as a gift by J. C. Davis to his son, appellant here; but the assignment was never recorded.

On January 6, 1936, six days after appellant had thus acquired the note and mortgage, the tax sale was held, and at it he was the highest bidder at $141.06. The tax deed was delivered to him in May, 1937 (it was dated May 10, 1937), and was recorded on December 5, 1942.

There having been no administration on the estate of W. A. Dunham, the sale of the property for delinquent taxes in the name of his 'estate' was void. Carter v. Wroten, 187 S.C. 432, 198 S.E. 13, 119 A.L.R. 379; Vallentine v. Robinson, 188 S.C. 194, 198 S.E. 197; Fischer v. Bennett, 202 S.C. 534, 25 S.E.2d 746; Hiott v. Cochran, 213 S.C. 207, 48 S.E.2d 803; Gregg v. Moore, 226 S.C. 366, 85 S.E.2d 279. The two-year statute of limitation, Code 1952, Section 65-2779, did not, in 1936, operate in favor of a purchaser in such case. Smith v. Cox, 83 S.C. 1, 65 S.E. 222.

Appellant, conceding the invalidity of the tax sale in 1936, contends that it was validated by Act No. 259 of the 1947 Acts of the General Assembly, and that therefore respondents are barred by the two-year statute. The 1947 Act provides as follows:

'Section 1: That, for the purpose of enforcing the payment and collection of delinquent taxes, the State, or any sub-division or municipality thereof, is authorized and empowered to levy upon and sell any property real or personal in the name of the person, firm or corporation in whose name the property was returned for taxation whether or not he, she or it be deceased or in existence at the time of the levy and/or sale without naming or referring to the heirs or estate of such owner.

'Section 2: That the Statute of Limitations applicable to tax execution sales, generally, shall apply to sales made as herein above provided for.

'Section 3: That this Act shall apply to sales heretofore made, as aforesaid, and such sales are hereby confirmed; Provided, however, this Act shall not be construed so as to affect suits or actions pending on claims heretofore actually made against purchasers or their heirs or grantees.'

Sections 1 and 2 of the Act appear in the 1952 Code as Sections 65-2769 and 65-2769.1 respectively, but Section 3, upon which appellant must rely, was not included in the codification. Respondents suggest that because of such omission the statute has no retroactive effect. On the other hand, appellant argues that the purpose of Section 3, so far as concerns the tax sale here in controversy, had been accomplished before the enactment of the 1952 Code, and that its omission therefrom is immaterial. For the purpose of this discussion we shall assume, without deciding, that the applicability of Section 3 to prior tax sales was not affected by its omission from the 1952 Code. Nor is it necessary to determine here whether the provision of Section 1, Code 1952, Section 65-2769, authorizing levy and sale 'in the name of the person * * * in whose name the property was returned for taxation' applies where the levy and sale are made in the name of the estate of such person, no administration having been had thereon.

The obvious purpose of the Act was to relax the stringency of the law as it then existed (Cf. Code 1952, Section 65-1627); and equally plain is the legislative intent by Section 3 to make the Act retroactive. In the case at bar, title to the property had vested in respondents prior to the tax sale and were not affected by it because, as we have seen, the sale was void. Retroactive application of the 1947 Act would be clearly unconstitutional as depriving them of property without due process of law. Muldrow v. Caldwell, 173 S.C. 243, 175 S.E. 501; First Presbyterian Church v. York Depository, 203 S.C. 410, 27 S.E.2d 573.

We recognize the oft-cited general rule, which appellant pleads here, that the legislature, by a curative or validating statute which is necessarily retrospective in character and retroactive in effect, can validate any act which it might originally have authorized, Green v. City of Rock Hill, 149 S.C. 234, 147 S.E. 346, but this rule is subject to the constitutional limitation before mentioned.

'Where no vested rights are impaired, a defective tax deed may be validated by a subsequent statute, but an act validating a tax title of the state where it was void before impairs vested private rights and is void'. 16 C.J.S., Constitutional Law, § 226(f), p. 652.

'The power of the legislature when not otherwise restricted by special constitutional limitation to enact curative legislation remedying tax titles invalidated or subject to be invalidated by reason of defects and irregularities in tax sale proceedings prior to subsequent to the tax sale depends in general upon whether the defects sought to be cured are jurisdictional defects, or merely irregularities in failing to comply with directory matters. * * * It may not, however, by way merely of curative legislation, cut off all rights to attack a tax deed or tax title for failure to comply with requirements of a jurisdictional nature constituting essential prerequisites to the validity of the title or deed'. 51 Am.Jur., Taxation, p. 935, Section 1075.

Appellant suggests that, even though Section 3 of the 1947 Act be disregarded, Section 2, which expressly made the two-year statute of limitation applicable to tax sales referred to in Section 1, is not retrospective, but prospective, and that therefore the two-year statute should be considered as having run against respondents from the effective date of the Act, May 12, 1947; and in support of this proposition cites Gillespie v. Pickens County, 197 S.C. 217, 14 S.E.2d 900. The rule there mentioned, and aptly phrased in Stoddard v. Owings, 42 S.C. 88, 20 S.E. 25, 26, that 'the le...