McNamara v. Baird

• Decision Date: 26 November 1894
• Citation: 72 Miss. 89,16 So. 384
• Court: Mississippi Supreme Court
• Parties: F. X. L. MCNAMARA v. J. R. BAIRD ET AL

16 So. 384

72 Miss. 89

F. X. L. MCNAMARA v. J. R. BAIRD ET AL

Supreme Court of Mississippi

November 26, 1894

FROM the chancery court of Sunflower county. HON. W. R. TRIGG Chancellor.

The opinion contains a sufficient statement of the case.

Decree reversed and cause remanded.

Dabney & McCabe, for appellant.

Appellant inherited whatever rights his brother had at the time of his death. In Harvey v. Briggs, 68 Miss. 60, it was held that the privilege of disaffirming a contract made by a minor descended to his heir. There are stronger reasons for holding that the right to redeem from a tax sale descends. In Stout v. Merrill, 35 Iowa 47, it is held that an infant who has the right to redeem lands from tax sale, may sell such right. Being salable, it is, of course descendible. Hence, we submit that, whether the one or the three years' statute of limitations be applied, the right to redeem exists, for the bill was filed within one year after Thomas McNamara would have attained majority had he lived. This is not an exception to or infringement upon the rule against cumulative disabilities. The law never intended that the property of minors should be taken for taxes until after a given period from the time the infant arrives at full age.

Frank Johnston, for appellees.

The question is whether the complainant can unite his minority disabilities to that of his deceased brother, and thus escape the bar of the statutes limiting the period of redemption.

By the abatement act, one year was given for redemption, without any saving for persons under disability. Laws 1875, p. 11, § 14. Under this statute, the complainant is cut off, as was his brother. On the legal doctrine against cumulative disabilities, I submit that the period of redemption began to run against complainant on the death of the brother, and had expired before the bill was filed. Where the statute does not otherwise expressly provide, the exception is to be limited to those disabilities existing when the cause of action accrued. Dease v. Jones, 23 Miss. 133; McDonald v. Hovey, 110 U.S. 619; 1 How. (U.S.), 37; 16 Ib., 247; 1 John. (N. Y.), 165; 3 Ib., 523; 18 Ib., 40; 3 John. Ch. (N Y.), 129; 12 Wend. (N. Y.), 602; 7 Sergt. & R. (Pa.), 207; 2 Conn. 27; 3 Ib., 227; 4 Day (Conn.), 298; 1 Metc. (Ky.), 602; 4 Mass. 182; 1 Taunt., 826; Sheppard's Touchstone, 31; 3 Coke Litt., 18, and notes; Angell on Lim., § 482; 13 Am. & Eng. Enc. L., 732, 734.

The established doctrine is that a subsequent disability cannot be tacked to a preceding one. This rests upon two a priori principles--namely: (1) That the particular disability must exist at the time when the cause of action accrued; (2) that the purpose of the statute is to fix a period of repose, and that the saving is to operate upon the person, and not future disabilities. Otherwise, a right might run through centuries of minorities and covertures. In this case, the right to redeem descended to appellant, but, at Thomas McNamara's death, the statute of limitations fixing the period of redemption was at once set in motion. The minority disability of Thomas did not pass by descent to appellant.

Argued orally by Frank Johnston for appellees.

CAMPBELL Special J. WHITFIELD, J.

OPINION

CAMPBELL, Special J.

The title of the section of land was in Thomas McNamara, an infant, who acquired it by conveyance of the state of Mississippi, which had purchased it at a sale for taxes in 1867. It was sold for taxes in 1871, and purchased by the liquidating levee board. The south one-half of the section was sold for taxes in 1872, and struck off to the state, and this was again sold in 1875 under the "abatement act," and purchased by the state. In 1883 all the land was sold for taxes, and purchased by the state. The defendant has acquired whatever title the state or levee board had. Thomas McNamara died in infancy in July, 1889, and would have attained majority in December of that year. This bill to remove clouds from title and to redeem from tax sales, if valid, was exhibited by the complainant, the sole heir of Thomas McNamara, within one year from the time when Thomas would have been twenty-one years old, but more than a year after his death.

The tax sale to the levee board in 1871 is admitted by both parties to have been valid, and the right of complainant to redeem as to this sale is conceded. The sales of 1872 and 1875 are admitted by both parties to have been void, although in the answer of defendant the latter is invoked as protecting the right of defendant and barring the claim of a right to redeem, it being alleged, as it is in argument, that, under the abatement act, the right to redeem was limited to twelve months, with no saving in favor of infants beyond that, and this view seems to be advanced in argument by counsel for the complainant. The validity of the tax sale of 1883 is affirmed by the defendant and denied by the complainant, who claims the right to redeem, if the sale was valid, while the position of the defense is that, except as to the sale in 1871, from which complainant may redeem, because the law under which it was made gave infants three years after majority in which to redeem, the complainant lost any right he may have had to redeem by not filing his bill within one year after the death of Thomas, from whom he inherited. The proposition is that, while Thomas McNamara had the right to redeem from all the sales for taxes, except that of 1875, if valid, and would have been entitled to maintain this bill for that purpose had he lived and exhibited it, the complainant is barred of his claim because of the lapse of one year after Thomas' death and the bringing this suit; that the one year commenced to run on the death of Thomas, and barred all claim to redeem, except as to the sale of 1871.

It is apparent that the paramount question in the case is the right to redeem as to all the sales, and, if the complainant has this right, it is not material to him whether they were void or valid. Indeed, the right to redeem is often more advantageous than to annul a tax sale, in case of an infant. We assume that the sale of 1871 was valid, and that...