Hooper v. Walker

• Decision Date: 27 January 1947
• Docket Number: 36279.
• Citation: 29 So.2d 72,201 Miss. 158
• Court: Mississippi Supreme Court
• Parties: HOOPER v. WALKER et al.

29 So.2d 72

201 Miss. 158

HOOPER v. WALKER et al.

No. 36279.

Supreme Court of Mississippi

January 27, 1947

Wells, Wells, Newman & Thomas, of Jackson, and Roy J. Goss, of Columbia, for appellant.

Howie, Howie & McGowan, of Jackson, J. R Buchanan, of Laurel, and Martin & Farr of Prentis, for appellee.

McGEHEE, Justice.

This suit is brought by the appellant, S. J. Hooper, as vendee of a patentee from the State, to confirm his title to 20 acres of land which was sold in Jefferson Davis County on October 11, 1937, to the State while owned by the appellee, Patsy Ann Walker, and assessed to her husband, Roscoe Walker, who were in the actual possession of the land both at the time of the tax sale and when this suit was brought on August 1, 1944. In fact Patsy Ann acquired the land on February 10, 1909, by warranty deed from her grandfather, the patentee of the United States Government, and she has since been continuously in the actual possession thereof, either in person or by tenant, up to the present time.

The suit is against the State under the provisions of Chapter 309, Laws 1940, and the said Patsy Ann Walker, and her husband, Roscoe Walker, and all other persons having or claiming any interest in the land. Only the Walkers filed answers, denying that the complainant was entitled to the relief sought. They also seek by a cross bill the cancellation of the tax sale patent from the State, and the deed from the patentee to the original complainant S. J. Hooper as clouds upon their title. The prayer of the cross-bill was granted by the trial court upon the ground that the tax sale was void and that the former owner was not barred from obtaining relief against the same by the two-year statute of limitation prescribed by Chapter 196, Laws 1934, Section 717, Code 1942, in the absence of possession taken by the State, its patentee, or his vendee, claiming under the tax sale.

The tax sale was held to be void, and we think correctly so, on the ground that the regular time fixed by the Legislature for the sale of lands during the year 1937 was on the first Monday in April and the third Monday in September respectively, except that under Section 3252, Code 1930, Section 9928, Code 1942, as amended by Chapter 150, Laws 1936, Section 9926, Code 1942, the legislature delegated to the Board of Supervisors the jurisdiction to fix a date subsequent to the third Monday in September for tax sales by providing that 'if from any cause a sale of any land for taxes which is liable to such sale shall not be made at the time appointed by law for such sale, it may be sold thereafter, in the same or a subsequent year, at any time designated therefor by order of the board of supervisors'.

It will be noted that each of these statutes delegates to the Board of Supervisors such power to fix a date for tax sales only in the event such sale 'shall not be made at the time appointed by law.' Therefore, in order for the Board of Supervisors to have jurisdiction to fix a date for the sale of land for delinquent taxes, the date fixed by the Legislature for the sale of lands for delinquent taxes must have passed. The order of the Board of Supervisors for the sale on October 11, 1937, was adopted and entered upon the minutes of the Board on September 7th, 1937, and the advertisement of the lands for sale was commenced on September 16, 1937, prior to the third Monday of the said month. The authority of the sheriff to make the sale is predicated solely upon the said order of the Board of Supervisors which was entered before the Board acquired any jurisdiction to fix a date for such sale. The sale on October 11, 1937, was therefore made on the wrong date.

Section 28, Chapter 188, Laws 1934, Section 9923, Code 1942, providing how tax sales of land shall be made, declares, among other things, that 'neither a failure to advertise, nor error in the advertisement, nor in conducting the sale, shall invalidate a sale at the proper time and place for taxes of any land on which the taxes were due and not paid, but a sale made at the wrong time or at the wrong place shall be void.' This statute, together with Chapter 196, Laws 1934, the latter of which is invoked in this case by the appellant as holder of the tax title, originated in the same branch of the legislature, and were both approved on the same date, April 4, 1934. In other words, both of these statutes were, and were intended to be, integral parts of the contract between the State and the landowner on the one hand, and between the State and the tax purchaser on the other, at the time the tax sale here in question was made.

Under the cases of Jackson v. Webster, 196 Miss. 778, 18 So.2d 298, and Merchants & Manufacturers Bank et al. v. State, Miss. 25 So.2d 585, 586, the tax sale on October 11, 1937, made pursuant to the order of the Board of Supervisors entered on September 7th, 1937, was void, and this is conceded to be true unless these cases are overruled.

It is contended that the decision in the case of Jackson v. Webster, supra, is unsound in holding that the tax sale in that case was void merely for the reason that the landowner, who may have undertaken to pay his taxes prior to the third Monday in September and after the commencement of the advertisement, was subjected to the payment of damages, fees and costs prior to the third Monday in September by the previous advertisement of his land for sale. It is true that he would have been subjected to such damages, fees and costs even though his land had been advertised to be sold on the third Monday in September. But, be that as it may, the decision in the case last above mentioned could have well been predicated upon the ground that the Board had no jurisdiction to fix a date of sale until the time fixed by the Legislature had expired. We, therefore, think that the case was correctly decided, without regard to whether or not the right reason was given for the conclusion reached. We are, therefore, unwilling to overrule the two cases above cited or the cases of Smith v. Hendrix, 181 Miss. 229, 178 So. 819, and White v. Noblin, 183 Miss. 92, 183 So. 914.

But it is urged by the appellant that even though the sale in the instant case is void, such invalidity is due to the noncompliance with a statutory requirement as to the time for sale--a requirement which could have been dispensed with by the legislature in advance, since Section 79, Constitution of 1890, provides that 'the Legislature shall provide by law for the sale of all delinquent tax lands * * *'--and that the failure to comply with the statutory requirements as to the time for sale is cured by the provisions of the said Chapter 196, Laws 1934, since the landowner did not bring a suit or action to cancel the title of the State, or its patentee or his vendee within two years after the period of redemption had expired.

While it is true that the State Constitution contains no provision which requires that land be sold for delinquent taxes at any particular time, and that Section 79 thereof has delegated to the Legislature the authority to provide by law for the sale of all delinquent tax lands, nevertheless, a serious question is presented as to whether or not a tax sale can be made at the wrong time or place without depriving the citizen of his property without due process of law in violation of Section 14 of the State Constitution. But we deem it unnecessary to discuss this question in the instant case in view of the conclusion that we have reached, and have heretofore repeatedly announced, as to the effect of Chapter 196, Laws 1934.

This Court expressly held in the cases of Russell Investment Corporation v. Russell, 182 Miss. 385, 178 So. 815, 182 So. 102, and Grant v. Montgomery, 193 Miss. 175, 5 So.2d 491, that the Act in question is purely a statute of limitation, and not a curative statute within the usual sense of that term.

The title of the said Chapter 196, Laws 1934, reads: 'An Act to limit the time within which actions may be brought to cancel the state's title to any land or to recover any land from the state which has been or may hereafter be sold or forfeited to the state for taxes on account of defect, irregularity of illegality in the assessment, levy or sale of such land for taxes, to except those under disability, to provide that the completion of the limitation shall defeat the rights of all persons in and to said land except the state and its patentees, and for other purposes.'

Section 1 of the Act provides 'that the owner, mortgagee or other person interested in any land which had been heretofore or may be hereafter sold or forfeited to the state for delinquent taxes may bring a suit or action to cancel the title of the state, or its patentees, or to recover said land from the state, or its patentees, on account of any defect, irregularity or illegality in the assessment, levy or sale of such land for delinquent taxes, within two years after the date this act becomes effective as to lands heretofore sold or forfeited to the state for delinquent taxes, and within two years after the period of redemption shall have expired, as to lands hereafter sold or forfeited to the state for delinquent taxes, and not thereafter. * * *.'

Section 3 of the Act provides that 'the completion of the limitation herein prescribed to bar any action shall defeat and extinguish all the right, title and interest, including the right of possession in and to such land, of any and all persons whatsoever, except the state of Mississippi and its patentees, and it shall vest in the state, and its patentees, a fee simple title to such lands.'

The Act is now to be found as Section 717, Code 1942, in the chapter on 'Limitations of Actions,' and this Code chapter also contains a general...