McLemore v. Anderson

• Decision Date: 20 May 1907
• Docket Number: 12,501
• Citation: 43 So. 878,92 Miss. 42
• Court: Mississippi Supreme Court
• Parties: SAMUEL M. MCLEMORE ET AL v. PETER ANDERSON

43 So. 878

92 Miss. 42

SAMUEL M. MCLEMORE ET AL v. PETER ANDERSON

No. 12,501

Supreme Court of Mississippi

May 20, 1907

FROM the Chancery Court of Quitman county, HON. CARY C. MOODY Chancellor.

Anderson appellee, was complainant in the court below; McLemore and others, appellants, were defendants there. From a decree dismissing defendants' cross-bill, the complainant having voluntarily dismissed the original bill, the defendants appealed to the supreme court.

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

Reversed and remanded.

T. E Williams and McWillie & Thompson, for appellants.

The cross-complainants on January 9, 1878, purchased the land from Gibbs and Hemingway, Commissioners, appointed to sell the lands held by the Liquidating Levee Board, in the case of Green v. Gibbs, in the chancery court of Hinds county.

On March 2, 1888, before the cross-defendant Anderson bought from the auditor, the legislature of Mississippi passed an act by the first section of which it was provided that the deeds made by said Gibbs and Hemingway as commissioners in said cause "should be taken and held in all the courts of the state as prima facie evidence that the land embraced was duly and legally sold to said board of (liquidating) levee commissioners up to and including the sales of 1874 for the taxes due and unpaid thereon and that the title conferred by said deeds is to all intents and purposes valid. Laws 1888, p. 41.

It will be observed that the sales list, offered to show title in the state under the abatement act, purports to be a copy of a copy of the original sales list of the tax collector of Tunica county verified by the auditor of public accounts, and not a certified copy of the original sales list, which original the act in question required to be forwarded to the auditor who thereupon became the custodian thereof. Laws 1875, p. 16.

The legal custodian of the original sales list never saw it, and his certificate can give no force to an alleged copy made by another person. The original sales list and that alone was the auditor's warrant for selling the land.

There being no sufficient showing as to a sales list and therefore no sufficient showing of a sale in 1875, the auditor's conveyance to cross-defendant which was based on an alleged copy and not on the original list made by the tax-collector, as contemplated by the statute finds no support in the so-called sale under the abatement act.

There remains only the sale to the state in 1867 to support the auditor's conveyance, but in order to give effect to the provision of the Act of 1888 making the Commissioner's deeds prima facie evidence that the land was "duly and legally sold to the Liquidating Levee Board for taxes due and unpaid" we have to assume that the state's title under the sale of 1867 had been divested by redemption or sale prior to the conveyance to said board in 1869, just as in the case of a sale of a sixteenth section for unpaid taxes it was assumed that there had been a lease by the school trustees in order to give effect to Code 1871, § 1300, making tax collectors' deeds and a sales lists of lands struck off to the state prima facie evidence of a valid assessment and sale. Chamberlain v. Lawrence County, 71 Miss. 949, 15 So. 40.

Moreover, the auditor's deed under which cross-defendant claims recites a sale to the state for taxes in 1879 as authorizing that officer's act in making the conveyance, and no sales list for that year was offered in evidence. It will not do to say the deed is supported by sales to the state in 1867 and 1875, for apart from the matter already presented which disposes of those sales, this is not a case where a mere showing of any anterior sale to the state will suffice. A sales list showing that the land was struck off to the state in 1879 should have been produced in evidence, or proof made that the land had not become subject to taxation and sale for delinquency in 1879.

This court has decided that where the state has title under any sale for taxes, the auditor's deed will convey the same to a purchaser although there be a misrecital therein as to the real date of the sale to the state. Caruthers v. McLaran, 56 Miss. 371. But it has never held that when an Auditor's deed recites a sale for taxes at one time the mere proof of an earlier sale will also prove that the date named in the deed is a misrecital. It is settled that one relying on a deed showing a sale for the taxes of a particular year can not claim a misrecital as to the year without proving it. French v. McAndrews, 61 Miss. 187, 193. In the case last cited it was shown that the land was in fact sold to the state in March 1875, and there was no deliquency for any year prior to 1874. So that there could not have possibly been any sale between March and May, 1875, and no sale could have been made in May, 1875, except under the abatement act, which contemplated the sale of no lands that were not delinquent for taxes prior to 1874. As there could have been no other sale between March and May, and the May sale was clearly void, there could be no other pretense of authority for the auditor's conveyance than the March sale. The same state of case existed in Witty v. Gamble, 55 Miss. 27, cited as authority for the position taken in Caruthers v. McLaran. To illustrate let us suppose that the cross-defendant produced a tax deed from the land commissioner dated in 1906 that recited a sale in 1904, for the taxes from 1845 till 1906 without any proof to show that the recital in the deed of the latter year was an error? Lands in the Mississippi Delta have been the subject of tax sales to a very large extent and proof that land was held by the state at a remote period cannot reasonably be said to overcome a recital in an auditor's deed to the effect that a subsequent sale had occurred. It is true in a certain sense that the auditor's deed passes the title that the state may have had under any tax sale, but the production of an old tax deed to the state does not so conclusively show that the title remained in the state as to overcome the auditor's recital to the contrary in the deed under which the party showing the old sale claims.

It should also be shown by proof that there had been no divestiture of the state's title, and the decisions rendered in cases where on the facts in evidence and the existing state of the law there could not have been a valid sale at the date recited nor any intervening sale do not conflict in the least with this view. The question is one of proof and not of presumptions.

Apart from this, the auditor, under Code 1880, § 561, was not authorized to sell for any sum less than the amount of all the taxes for which the land was sold and all taxes accrued since the sale together with twenty-five per cent. of the amount of taxes for which the land was sold; and where he recites in his deed a sale long after the only sale shown in evidence, it is clear that he predicated his conveyance of a payment of much less than the required amount. His recital in this case of a sale in 1879 is just the same thing as a recital that he collected no accrued taxes further back than 1879. The state cannot be robbed of its dues on an assumption contrary to the recital of the officer who made the deed. It was never intended by the court in any of its decisions that proof of a sale to the state long anterior to the one recited as the basis of the auditor's deed should be taken to show payment of all taxes back to the old sale. A sale for less than the amount required by law to be paid renders the tax deed void, the question being one of power to convey. Murdock v. Chaffe, 67 Miss. 740, 7 So. 519.

We do not lose sight of Railway Co. v. Buford, 73 Miss. 497, 19 So. 584, but the tax claimant cannot blow both hot and cold. He cannot say that he stands on the sale to the state in 1867 or 1875 to show title and that he stands on the sale to the state in 1879 to measure the amount of money necessary to effect a purchase. In the Buford case it appeared that there had been a sale in 1882 for the taxes of 1881 and the purchaser relied on the sale in 1882 though he did not show payment of taxes back to the apparent earlier forfeiture in 1874. He was not claiming that the recital of his auditor's deed of a sale in 1882 was false.

As provided by Code 1880, § 562, the failure to the auditor to endorse the whole amount of taxes received by him made his sale invalid, and such being the case it is very clear that the legislature intended that his failure in fact to collect the whole amount should have the same effect.

The foregoing considerations seem to suffice to dispose of this question, but it might also be noted that this court has lately held that evidence aliunde is not competent to show the day of sale recited in a tax deed is a mistake. Bower v. Chess, 83 Miss. 218, 35 So. 444.

As seen, the deed from the state recites a sale for taxes in 1879 and as no sales list for that year was produced the complainant and cross-defendant had to rely absolutely on the validity of the sale to the state in 1867. That sale was made on July 4, 1867, and as will be seen by Stern's U. S Calendar, the 4th day of July, 1867, fell on Thursday. Under the statute then in force tax sales had to be made on the first Monday in July. Laws 1863, p. 111. Hardie v. Chrisman, 60 Miss. 671. There is absolutely nothing in the record to show that the sales were continued from day to day from July 1st, the first Monday of that month, till July 4th, and it has been conclusively settled that in such case a deed naming a day of sale other than that fixed by law is void. Mead v. Day, 54 Miss. 58; McGehee v. Martin, 53 Miss. 519; Harkreader v. Clayton, 56 Miss. 383; Mayer v. Peebles, 58 Miss. 628; Byrd...