Howie v. Alford

Decision Date04 December 1911
Docket Number15,150
Citation56 So. 797,100 Miss. 485
CourtMississippi Supreme Court
PartiesV. R. HOWIE v. A. M. ALFORD ET AL

APPEAL from the chancery court of Hinds county, HON. G. G. LYELL Chancellor.

Bill by V. R. Howie against A. M. Alford. From a decree dismissing the bill complainant appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

V. R Howie, for appellant.

Under the common law rule our court seemed to be inclined to hold tat failure to file deed at proper time was fatal.

Prior to the Constitution of 1869, the decisions of our court followed the common law rule, in regard to the tax sales and tax titles. There are a number of decisions which follow this rule, but there are none that follow it which arose after the Constitution of 1869. There can not be found a single case in our decisions, where the question of the failure of the sheriff to file the deed with the clerk, within the time prescribed by law, is involved, based on a case and sale dated since the Constitution of 1869, that even inclines toward the former decision which followed the common law rule.

The common law rule is that all statutes regarding or affecting tax sales shall be interpreted strictly against the purchaser and liberally in favor of the former owner; and that all errors or mistakes on the part of the officers in the proceedings prior to the sale, at the sale, and after the sale, shall be construed strictly against the purchaser and liberally in favor of the former owner. Under this rule, our court seemed to be inclined to hold that a failure of the sheriff to file the deeds to individuals, or the lists of lands sold to the state, would invalidate the sale and make the title of the purchaser, individual or state, void. A close reading of cases that hold this reveals the fact that each and every one of them depend upon sales made prior to the Constitution of 1869. Some of these decisions were rendered after the adoption of that Constitution, and in fact one or two have been rendered only very recently, but the sales involved were prior to 1869. In the case of Vasser v. George, 47 Miss. 713, and Seales v. Perkins, 51 So. 806, this point was involved and decided, but in both cases it was involved only on question of validity of sale of 1867; and, as is well established in our law, the validity of a tax title must be interpreted, and determined, by the law as it existed at the time of the sale for taxes. Capital State Bank v. Lewis, 64 Miss. 727. Hence the titles therein declared invalid under the common law rule were not affected by the constitutional provision in the Constitution of 1869, and these decisions do not constitute authorities for this present case. The case of Bank v. Railway Co., 72 Miss. 447, is finally reduced to the question as to whether the failure of the sheriff to file his returns as provided by law under a sale of 1862 vitiates the sale. The other sales were settled on account of other matters.

It may seem that the case of Adams v. Mills, 71 Miss. 150, is an exception to the statement above made, but such is not the case. It is true that the court did mention the point in regard to the deed not having been filed with the clerk for the whole period, but this matter was not before the court. It was not presented in the briefs of either side and we must presume was not considered by the court. Here the deed had been withdrawn marked cancelled. In other words the law had been complied with to cancel the deed. The deed had been cancelled so of course could not be reinstated. The clerk could not reinstate the title after having cancelled it, as he attempted to do. The last clause of the decision, which is the only one that can be considered decisive, states very clearly and conclusively, that the question therein decided by the court was as to the effect of the cancellation of the deed by the clerk, and the effect of the clerk afterward marking off the cancellation and redepositing it. As above referred to this constitutes and entirely different case, from the present case, so cannot be cited as an authority.

Prior to the Constitution of 1869, tax titles in the state of Mississippi had become worthless and looked upon as no more than a joke. The result of this condition was that all, or almost all, of the land which was forfeited for the non-payment of taxes was sold to the state. No one would bid in the lands because of the fact that the title was worthless, there always being some little irregularity which under the common law rule would defeat the purchaser's title. This condition exists in all the states of the Union at one time or another and from time to time all have attempted to remedy this and strengthen tax titles. The Constitution of 1869, article 12, section 8, was the first time that anything was done that materially helped tax titles in Mississippi. This article provides as follows: "The legislature shall provide by law for the sale of all delinquent tax lands. The courts shall apply the same liberal principles in favor of such titles as in sale by execution," which section was carried forward in the Constitution of 1890, section 79. This provision of the Constitution introduced for the first time a rule for the guidance of the court in passing upon tax titles. In the case of Virden v. Bowers, 55 Miss. 1, we have the following language of the court, to wit: "Section 8, article 12, Constitution 1869, in the first clause introduced for the first time a permanent rule, which repealed the old rule, to guide the courts in the consideration of such titles." Thus it appears that the only decision which can be considered as a precedent for this court, is such as have involved tax titles arising from sales made subsequent to the passage of the Constitution of 1869. This being true, the question presents itself as to what the meaning of this provision in the Constitution is, and what that rule therein provided for means?

We have an abundance of cases from our courts and from other courts as to what is meant by the same liberal principles in the construction of facts pertaining to execution sales. In the case of Howe v. Starkweather, 18 Miss. 261, we have the following, towit:

"The purchaser depends on the judgment, the levy, and the deed. All other questions are between the parties to the judgment and the marshal." Citing from Wheaton v. Sexton, 41 Wh. 506.

"Where there is an authority, not strictly pursued, the sale is not void," citing Kentucky case.

"Judgment, execution, levy, and deed are all that is required." Citing from Ware v. Bradford, Alabama Report, 682.

"Deed not prejudiced by failure to make proper returns," quoting from Doe v. Heath, 7 Black, 156.

"If notice has not been given, purchaser's title will not be affected." Citing Allen's Lessee v. Parish, 3 Ohio Report, 187.

We submit that if these same liberal principles are applied to the present case, according to the rule set out in our Constitution, the title must be held valid and the decree of the chancellor reversed.

MAYES, C. J. SMITH, J. (dissenting).

OPINION

MAYES, C. J.

At the January, 1911, term of the chancery court of Hinds county, V. R. Howie filed a suit for the purpose of having a tax title quieted. The suit complies with all the requirements of the statute authorizing proceedings of this kind, and we will not burden the statement of this case with facts which do not involve the legal questions presented for decision.

The complaint alleges that the land was liable for taxes for the year 1907, and was properly assessed; that the tax was not paid for th at year and the land was subsequently advertised, as is required to be done by section 4326 of the Code of 1906, "for sale at the door of the courthouse on the first Monday of April." The complaint then charges that on the first Monday of April, 1908, which was the 6th day of that month, the land was sold for the nonpayment of the tax due for the year 1907, and appellant became the purchaser at that sale. The complaint further shows that, although the sale of this land was made on the first Monday of April, 1908, the deed of the tax collector was not filed in the office of the chancery clerk until the 25th day of April. The complaint concludes with a prayer for summons, and that the court enter a decree confirming and quieting appellant's title. The complaint was demurred to on several grounds; the chief being that there was no equity on the face of the bill. This ground challenges the whole bill, and we shall take no notice of the other grounds. The court sustained the demurrer, and dismissed the bill, and from this judgment an appeal is prosecuted.

Let us emphasize the fact that the sheriff's deed was not filed on or before the first Monday of April, as required by section 4338 of the Code of 1906, but was filed nineteen days later. This fact, in view of section 4338 of the statute, which requires that the "tax collector shall file all conveyances of land sold to individuals in the office of the chancery clerk of the county, on or before the first Monday of April, there to remain for two years from the day of sale, unless," etc., would seem to end this controversy. Because section 4328 of the Code of 1906, as amended by Laws 1908, page 208, requires the sale to be made on the same day that the deed is required to be filed, this fact can furnish no justification to this court if it should undertake to do legislative work, and thus correct what is conceived to be a legislative blunder.

This court has twice held that this section was mandatory, and that the failure to file the deed with the clerk, as required by this section, made the deed void. See Adams v. Mills, 71 Miss. 150, 14 So. 462 and Sintes v. Barber, 78 Miss. 585, 29 So. 403. In the...

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