Gregory v. Brogan

• Decision Date: 08 March 1897
• Citation: 21 So. 521,74 Miss. 694
• Court: Mississippi Supreme Court
• Parties: O. Y. GREGORY v. JOHN T. BROGAN

21 So. 521

74 Miss. 694

O. Y. GREGORY v. JOHN T. BROGAN

Supreme Court of Mississippi

March 8, 1897

March 1897

FROM the chancery court of Clay county HON. BAXTER MCFARLAND Chancellor.

Brogan appellee, filed his bill of complaint against Gregory appellant, and others, to confirm tax titles to a large body of land. Gregory defended as to a part of the land only. The chancery court confirmed the complainant's titles, as prayed for, to all the land embraced in the suit; defendant, Gregory, alone appealed.

Decree reversed.

Houston & Reynolds, for appellant.

We submit that the sale was not made as required by § 521, code of 1880. One of the objects of this statute was to prevent the sale of more land than was necessary. Hodge v. Wilson, 12 Smed. & M., 498. If sold without designating and describing the particular forty acres offered, and the additional forty acre tracts as they were added, the sale was invalid, because a bidder could not know what the collector was attempting to sell. Hodge v. Wilson, supra.

Counsel contend that what our statute means by "one tract" is the tract as it is assessed; that the assessment is the final test of it. The statute says: "Until all of the land constituting one tract, " not assessed as one tract. It does not say all of the land assessed as one tract, nor does it say all the land constituting one tract on the assessment roll. The statute says "and assessed as the property of the same owner."

Fox &amp Roan and J. J. McClellan, for appellee.

OPINION

STOCKDALE, J.

John T. Brogan filed his bill in the chancery court of Clay county to the May, 1894, term, against G. W. Leigh et al., praying confirmation of tax titles to southeast 1/4 of southeast 1/4 of section 11, and southwest 1/4 of southwest 1/4 of section 12, and south 3/4 of north 1/2 of southwest 1/4 of section 12, all in township 17, range 5 east, lying in Clay county, Miss. and other lands. Appellant and J. M. Judah, among others, were made defendants, and answered said bill of complaint, denying the right of complainant to confirm his alleged tax titles to lands included in a deed of conveyance from respondent, J. M. Judah, to respondent, O. Y. Gregory (appellant here), on June 16, 1893, by which is conveyed the east 1/2 of southeast 1/4 of section 11 (except nine acres in northwest corner), also one hundred acres on the west side of the southwest quarter of section 12, all in township 17, range 5, east, containing in all one hundred and seventy-one acres, more or less, recorded June 17, 1893. As to these lands, respondent denies that complainant has any valid title thereto, and avers that his pretended tax titles are void, and confer no rights to the said lands.

The cause was tried on the pleadings and proofs, at the May term, 1896, of said court, and decree rendered in vacation, May 30, 1896, granting relief to complainant as prayed, and quieting and confirming in him tax titles to said lands. The proofs contained in the record here show that the south 3/4 of north 1/2 of southwest 1/4 of section 12, township 17, was assessed separately, and the amount of taxes due on it alone run out opposite the description; and that the same is true of the southwest 1/4 of the southwest 1/4 of same section; and the same is true of the southeast 1/4 of the southeast 1/4 of section 11, same township and range. The description shows that these parcels were contiguous, and the proof shows that they formed and constituted one tract, and were assessed to and as the property of the same owner, G. W. Leigh, and occupied as one farm in 1892. Three separate deeds (one for each parcel of land), were made by the tax collector to the same purchaser (appellee here), each reciting that the parcel therein described "was sold for the taxes due thereon for the year 1891." The list of lands sold to individuals at that sale shows the same thing; and the sheriff of the county, after examining his book in reference to the sale of these lands, testified: "It appears from the book that I sold it separately, each piece for the taxes due thereon."

Counsel for appellees, after stating that the statute had been complied with, call attention to the fact that ''three of the deeds were for only forty acres each " and refer us to § 521, code 1880. All proceedings touching the sale of this land were under the code of 1880. There was no forty acres offered for sale to the highest bidder for cash, to see if it would bring the amount due on the whole tract, but one forty acres was put up and sold for the taxes due on itself, then another forty, in the same manner, and then a sixty-acre parcel. That mode of sale made it inevitable that the whole tract would be sold for the taxes upon it, no matter how much any one forty acres might have brought. We think the act of the collector in selling the whole tract in that manner, without first having offered it in subdivisions to the highest bidder for cash, and, if the first forty acres failed to bring the taxes due on the whole tract of land, then adding another similar subdivision, and so on, until the requisite amount was produced, or until the whole tract was offered, exhibits such a departure from the scheme provided for the sale of delinquent land, that we think the sale was void, and conferred no title on appellee, so far as the land here in question is concerned. Griffin v. Ellis , 63 Miss. 348. It is not the...