McMahan v. American Building & Loan & Tontine Savings Association

• Decision Date: 18 April 1898
• Citation: 75 Miss. 965,23 So. 431
• Parties: J. W. MCMAHAN v. AMERICAN BUILDING & LOAN & TONTINE SAVINGS ASSOCIATION
• Court: Mississippi Supreme Court

23 So. 431

75 Miss. 965

J. W. MCMAHAN v. AMERICAN BUILDING & LOAN & TONTINE SAVINGS ASSOCIATION

Supreme Court of Mississippi

April 18, 1898

March 1898

FROM the circuit court of Lauderdale county HON. G. B. HUDDLESTON Judge.

Unlawful detainer by appellant for the possession of property bought by it at sale under a trust deed in its favor. The opinion states the requirement of the deed in respect to notice of sale. The appellant had only been engaged in business as a building company since January 1, 1896, and its stock or shares had never represented monthly payments in excess of $ 500. The period for which it was delinquent did not therefore, extend beyond the date above mentioned, and the amount of the tax chargeable against it under the classification contained in existing law was $ 25. The appellant, during the month of March, 1896, and after the eighteenth day of that month, paid to the tax collector $ 50 and received from him two licenses dated back to March 1 1896, under authority of law, § 3408, code 1892, on both of which the collector indorsed the following: "This license is taken out to date, January 1, 1896 and to meet the provisions of an act to raise revenue by making contracts valid which were not under previous laws." Said act approved March 3, 1896, which went into effect upon its passage, is, omitting headlines, as follows: "That all contracts made previous to the passage of this act, which were void under any laws heretofore existing, for nonpayment, in whole or in part, of any privilege taxes, shall be valid and of the same force as if no default had been made in the payment thereof in every instance where there shall be paid within sixty days from the passage of this act, by or for any person, partnership or corporation delinquent in the payment of such taxes, full taxes for the years preceding the passage of this act, for which such delinquency occurred and one hundred per centum damages in addition, according to the requirements of the laws in force during such delinquency. And such payment shall so make valid such contracts entered into at any time in any year preceding the passage of this act, for which such payments shall be made."

A letter from the auditor of public accounts, dated March 18, 1896, expressing the view that the course in part pursued by the delinquent and tax collector in the premises would relieve appellant of the penalty of delinquency, was introduced by plaintiff. Defendant objected to the introduction of this letter and the licenses issued, and his objection was overruled. From a judgment for plaintiff, defendant appealed.

Reversed.

Amis & Dunn and Ethridge & McBeath, for the appellant.

1. The trustee failed to comply with the terms of the trust deed as to notice of sale. Perry on Trusts, 602; Wade v. Thompson, 52 Miss. 367; Johnson v. Sergeant, 45 Ib., 332; Bowman v. Roberts, 58 Ib., 126.

2. Since the law recognizes no part of a year in paying privilege taxes, the payment of $ 50 on March 1, 1896, only covered the year expiring on that date, and to comply with the act of March 3, 1896, and by paying "full taxes" secure the validation of the void contract, it was necessary to pay $ 25 more, to cover the period following March 1, in respect to which appellee was in default. The indorsements put by the collector on the two licenses for $ 25 each were ultra rites, illegal, and void. Section 3408, code 1892, prescribes that such licenses shall bear date as of the first day of the month in which they are issued, and no indorsement by the collector is authorized.

3. The letter of the auditor of public accounts was improperly admitted in evidence.

G. Q. Hall, for appellee.

1. Privilege tax licenses run by the year. In this case, the tax omitted to be paid was for the year 1896. It should have been paid on January 1; it was not paid until March. The payment then made was given relation back, by force of the statute to cover the period of delinquency, the condition imposed being 100 per cent. in addition to the amount that the delinquent was liable for had he paid the tax when due. If any fractional part of a year was recognized, something like eight dollars would have satisfied the law's demand, but there being no fractional part of a year recognized in such matters, it was necessary...