Leavenworth v. Claughton

• Decision Date: 12 February 1945
• Docket Number: 35718.
• Citation: 20 So.2d 821,197 Miss. 606
• Court: Mississippi Supreme Court
• Parties: LEAVENWORTH v. CLAUGHTON.

20 So.2d 821

197 Miss. 606

LEAVENWORTH v. CLAUGHTON.

No. 35718.

Supreme Court of Mississippi

February 12, 1945

Hathorn & Hathorn, of Hattiesburg, for appellant.

Ben Stevens, of Hattiesburg, and H. K. McKee, of Picayune, for appellee.

ROBERDS, Justice.

Appellee, in her suggestion of error, urges, as a new point not considered either in the arguments of counsel or by the Court on the original hearing, that in the cases of Nevin v. Bailey, 62 Miss. 433; Sigman v. Lundy, 66 Miss. 522, 6 So. 245, and Cole v. Coon, 70 Miss 634, 12 So. 849, the Court upheld and gave effect to curative acts under Section 1, Art. IV, Constitution of 1869, and that this Section was brought forward and became Section 33 Constitution of 1890, and that the readoption of this constitutional provision also adopted the holdings in those cases. We do not fully grasp the force of the suggestion even if those cases supported appellee's contention, since these sections of the Constitutions simply provide that 'The legislative power of this state shall be vested in the legislature which shall consist of a senate and a house of representatives.' But those cases are not authority for appellee's contention, for the reason that the statutes therein considered were prospective and the tax sales occurred after their passage. The courts recognize there is a vital and fundamental difference between special acts purporting to operate retroactively upon events which have already occurred and rights which have already vested, and those which operate prospectively upon happenings yet to occur. Judge Cooper, who wrote the opinion in Dingey v. Paxton, 60 Miss. 1038, which dealt with a retroactive statute, also wrote the opinion in Cochran v. Baker, 60 Miss. 282, decided six months prior to Dingey v. Paxton. In the Cochran case it was said: 'It cannot be denied that, for the purpose of making a future sale, the Legislature could, by special act, have cured all errors and irregularities in the assessment of the lands and the levy of the taxes, arising from the non-performance * * * of any act it might constitutionally dispense with for the future.' All persons are charged with knowledge of existing law and such law is embodied in and becomes a part of the transaction thereunder.

It is further suggested that the requirement of possession by the tax purchaser at a void sale as a pre-requisite to invoking the benefit of Chapter 196, Laws of 1934, ought not to apply to the state, for the reason, so asserted, that it is not practical for the state to take possession of the lands purchased by it at tax sales. It is not clear that the state is not able to exercise over such lands the possession necessary to invoke the benefit of the special act, but even though it cannot do so, expediency in favor of the state cannot override fundamental and constitutional rights in favor of its citizens. But the point is not applicable in this case because this action was brought, not by the state, but by its patentee, who is not under the suggested disability.

It is next contended by appellee, with much persuasion, that we were in error in holding that possession by the tax purchaser at a void sale is necessary to the right to invoke the benefit of said Chapter 196, and we are asked to hold that the mere flight of time for two years precludes any and all right of action, and the assertion of any defense, on the part of the owner, whether possession has been taken by the tax purchaser or not, even though the tax sale is void. In again considering this question we should have clearly in mind the essential existing facts in this case. They are (1) that the sale was void, invalid and of no effect (although the writer does not personally agree with that); (2) that the sale was three years prior to the passage of the act, and (3) neither the State, nor its patentee, appellee herein, has exercised adverse possession over the property, or disturbed the possession of the owner, for the time prescribed by the act, which the reporter will here set out as a footnote. ^[1] It will be seen that Section 1 is purely a statute of limitation. It merely prescribes the time in which the owner must bring an action. It does not by its terms endeavor to correct any defect or irregularity in the sale. These are cured, if cured at all, not by the express terms of the act, but only as a result of the inability of the owner to attack them. But Section 3 goes further than Section 1. It undertakes to divest out of the owner and invest in the state, or its patentee, title to the property. Lee v. Smith, 189 Miss. 636, 198 So. 296. It would seem clear that Section 3, standing alone, is unconstitutional. It is an effort at forced conveyance by legislative fiat. That is not due process of law. Section 14, Constitution of 1890. The sale being void and invalid and the legislative fiat being ineffective no right or title is taken from the owner, or vested in the purchaser, by either. In that situation, without more, no cause of action has accrued, or need be invoked, by the owner. That was the exact situation confronting the court when it said in Dingey v. Paxton, supra, '* * * there is a wide distinction between that legislation which requires one having a mere right to sue, to pursue the right speedily, and that which creates the necessity for suit by converting an estate in possession into a mere right of action, and then limits the time in which the suit may be brought.' In other words, the legislature has no power to create and bring into existence a right of action which does not exist in fact. It cannot by legislative fiat set up, Don Quixote like, an imaginary windmill and command the property owner to charge and demolish it by legal proceedings within a stated time. Therefore, to save the constitutionality of the statute and give it some effect, we had to couple the sale with adverse possession by the purchaser. Russell Inv. Co. v. Russell, 182 Miss. 385, 178 So. 815, 182 So. 102; White v. Noblin, 183 Miss. 92, 183 So. 914; Bruce Co. v. Smallwood, 188 Miss. 771, 196 So. 227; Grant v. Montgomery, 193 Miss. 175, 5 So.2d 491. The original opinion herein restates the announcement. As was said in Carlisle v. Goode, 71 Miss. 453, 15 So. 119, 120, 'We cannot impute to the lawmaking department a purpose to wrest from the citizen his title to the lands by a mere legislative declaration, after an attempt to do so under a void assessment, and a failure in such attempt.' The adverse possession holding was the most favorable which could be given the state under the circumstances. Whether the court was justified in so doing, construing the strict wording of the statute, is doubtful, but, whether such construction was technically correct or not, looking only to the wording of the statute, we think it is too late now to reverse that holding, since it has become a rule of property and no doubt has been widely acted upon, and especially since the only sales involved are those which occurred prior to April 4, 1934. We might add here that we are not called upon in this case to pass upon the constitutionality of Chapter 196. Neither party attacks its validity. What we have said on that subject was for the purpose of showing the necessity for adverse possession.

And in order that there be no mistake as to the character of possession herein meant we will say it is that character and type of possession required under Section 711, Code 1942, the ten years' adverse possession statute, and not that under Section 716, Code 1942, the three years' actual occupation under tax title statute.

Appellee again presses upon us the argument that mere defects and irregularities in tax sales may be cured by retroactive acts of the legislature if of a character the legislature might have dispensed with by prior law. But, as we have said, the manner of sale here was not a defect or mere irregularity. The sale was void. And if the special act works the effect intended, without the requirement of adverse possession, property is taken without due process of law. So that we have here involved both a departure from the statute and a constitutional question, which cannot be cured by a retroactive statute. Russell Inv. Co. v. Russell, supra.

Overruled.

L. A. SMITH, Sr., J., took no part in this decision.

SYDNEY SMITH, Chief Justice (concurring).

I concur in the overruling of this Suggestion of Error, but all that was said in our former opinion herein relative to the period of limitation prescribed by Chap. 196, Laws 1934 beginning when the possession of the owner of land sold to the State for taxes is invaded by the State or its patentee, should be withdrawn. In addition, Dingey v. Paxton, 60 Miss. 1038, should be reaffirmed without any modification thereof, and the uncertainty which has been injected by Russell Investment Company v. Russell, 182 Miss. 385, 178 So. 815, 182 So. 102, onto the question of the validity vel non of Chap. 196, Laws 1934, as applied to sales of land to the State for taxes, made prior to the statute's enactment, should be here definitely and effectively cleared up; which, with deference, the opinion just rendered does not do.

Whether Chap. 196, Laws 1934, be viewed as a statute of limitation or as a curative act, the result as to its constitutional validity vel non, when applied to sales of land to the State for taxes, made prior to its enactment, will be the same. That statute, if valid, would convert a void sale of land to the State for taxes, made prior to its enactment, into a valid sale, and transfer the title to the land from its owner to the State or its patentee by the mere flight of time--two years from the date the statute was enacted--unless the owner in the meantime has brought a suit or action to cancel the title...