Hewes v. Seal

• Decision Date: 26 May 1902
• Citation: 32 So. 55,80 Miss. 437
• Court: Mississippi Supreme Court
• Parties: FRANK S. HEWES v. MARY N. SEAL

32 So. 55

80 Miss. 437

FRANK S. HEWES v. MARY N. SEAL

Supreme Court of Mississippi

May 26, 1902

March 1902

FROM the chancery court of Harrison county HON. STONE DEAVERS Chancellor.

The appellee, Mary N. Seal, was complainant, and the appellant Frank S. Hewes, one of the defendants in the court below.

Roderick Seal owned a large quantity of land in Harrison county consisting of separate tracts, some of it being town lots. All of it was assessed to him in 1899, the separate pieces appearing on the assessment roll in different places separated by other lands. Seal died, and the taxes due on the land for the year 1899 were not paid, and in March, 1900, the time fixed by law, the tax collector sold the land for the taxes. In making the sale he first offered a proper quantity, which failed to bring the full amount of the taxes due on all the land. He added another piece, not treating each separate piece as an independent assessment, and when the whole of any one separate tract failed to bring an amount sufficient to pay the whole tax due he added another, or a part of another, separate tract, and so. on until the whole of Seal's land was offered and bid in by defendant Sintes, and the tax collector made him a deed conveying all the lands to him, and lodged it with the clerk of the chancery court, appellant, Hewes. Subsequent to this tax sale, appellee, Mary N. Seal, acquired title to a portion of these lands. She applied to appellant, Hewes, who was chancery clerk, to redeem that portion of the lands embraced in her deed. The clerk refused to permit her to redeem that portion of the land unless she would pay all the taxes and damages, and redeem all the land embraced in the deed to Sintes, claiming that he had no authority, under § 3823 of the code of 1892, to partially cancel a tax deed. Mrs. Seal then filed her bill in the chancery court of Harrison county, setting up the foregoing facts, seeking to compel appellant, Hewes, to accept the taxes and damages for the lands she owned, and allow her to redeem same from the tax sale. Sintes was made a party to the bill. Act February 17, 1888 (laws 1888, p. 206, ch. 166), provides that whenever lands in Harrison county change ownership the owner shall have the right to pay the taxes assessed against said lands to the sheriff and tax collector; and, where the change of ownership occurs in lands sold for taxes, the owner applying to pay said taxes shall pay over to the tax collector the proper pro rata share of taxes due on said lands having changed ownership for the benefit of said buyer of said lands at tax sale. Defendant Hewes demurred to the bill because it seeks to impose on him the duties and responsibilities which are placed by law on the sheriff; because it seeks to force defendant, contrary to law, to apportion taxes and costs, and to cancel a portion of a tax deed. The demurrer was overruled, and defendant Hewes appealed to the supreme court.

Decree affirmed and cause remanded.

E. J. Bowers and McWillie & Thompson, for appellants.

1. By the act of February 17, 1888 (laws 1888, ch. 166, p. 206), it is provided that whenever lands in Harrison county change ownership (and the land of Col. Seal did change owner. ship by his death and their inheritance and the subsequent conveyance of that part involved in this suit), the owner shall have the right to pay the taxes assessed against the land so changing ownership to the sheriff and tax collector; and (sec. 2) where the change of ownership occurs in lands sold for taxes the owner applying to pay the taxes (presumably on a part of an entire assessment or of that embraced in a tax deed) "shall pay over to the tax collector the proper pro rata share of taxes due on said lands having changed ownership for the benefit of said buyer of said lands at tax sale." What does this mean? Does it not authorize the tax collector of Harrison county to receive the redemption money, make apportionment, etc., in case a party wishes to redeem a part of lands sold at tax sale? Is not the chancery clerk wholly relieved of such duties in such cases? Is the act of 1888 yet in force? It seems to be kept alive by code 1892, § 8, and it does not appear to be embraced by § 3 of said code.

2. What authority does code 1892, § 3873, give a chancery clerk in the premises? Manifestly none except to be governed by the face of the tax deed. He does not know anything about the location of the land, or how it was assessed, whether in one or more assessments. He is not authorized to examine the assessment rolls or to be governed by them if he make the examination. He can no more separate the lands in the deed in...