McRee v. Swalm

• Decision Date: 23 February 1903
• Citation: 33 So. 503,81 Miss. 679
• Court: Mississippi Supreme Court
• Parties: LAURA T. MCREE ET AL. v. FRANK S. SWALM

33 So. 503

81 Miss. 679

LAURA T. MCREE ET AL. v. FRANK S. SWALM

Supreme Court of Mississippi

February 23, 1903

FROM the chancery court of Lincoln county. HON. HENRY C. CONN Chancellor.

Mrs McRee and her children, appellants, were complainants in the court below; Swalm, appellee, was defendant there. The object of the suit was to cancel a tax deed. The defendant answered the bill, and by way of a cross-bill sought the confirmation of the tax deed. The demurrer of complainants to the cross-bill having been overruled, they appealed to the supreme court.

The deed sought to be canceled is in the form prescribed by statute, but is signed, "Chas. McNair, Tax Collector, by R. C. Applewhite, Deputy," and the acknowledgment is as fellows: "Personally appeared before Felix May, chancery clerk of Lincoln county, R. C. Applewhite, deputy tax collector of Lincoln county, who acknowledged that he signed and delivered the foregoing instrument, as tax collector aforesaid, on the clay and year therein mentioned." At the time the sale was made, Applewhite had no written appointment as deputy sheriff, and had not qualified as such as directed by the statute. He had been employed by the sheriff and tax collector as an assistant in the office for a year or so, when the sheriff, McNair, died, and there was no sheriff at the time the sale was made, but Applewhite was in possession of the office and acting as such deputy, and continued to do so until a successor to the sheriff was appointed and qualified, and was recognized as such by the public.

The question presented was the validity of the tax deed so made and this resolved itself into an inquiry touching the power of Applewhite to make the tax sale. The code section specially involved is as follows:

"3079(423). Deputy to discharge duty after death of officer.--If any state or county officer shall die having a deputy, the deputy may continue to discharge the duties of the office in the name of the deceased officer as if he had not died, until the vacancy in the office shall be filled according to law, and the official bond of the deceased officer and his estate shall be a security for the faithful performance of the duties of the office by the deputy, who shall be subject to all the provisions of law applicable to his principal in his lifetime; and the personal, representative of the decedent shall have like remedy against, the deputy as the decedent would have if living."

Affirmed and remanded.

H. Cassedy, for appellants.

Although the duties of sheriff and tax collector are required to be performed by the same person, still the statute provides for two offices, with distinct, well-defined duties and liabilities, one denominated the office of "sheriff" and the other the office of "tax collector" or "collector." In his administration of his office as sheriff the incumbent is allowed by statute to appoint one general deputy and as many special deputies as he may have occasion to use. By the utter absence of any provision for a deputy tax collector, and the provision for a "deputy sheriff," it is to be presumed that the lawmakers intended that the sheriff should perform those duties, which lasted only a few months in the year, in person and not by deputy. The law gives him his deputies to carry on the sheriff's office while he collects the taxes.

The sale and tax deed in this case should have been made by the officer himself. Could it be claimed that a deputy sheriff even would have authority to make a deed to the land sold by his principal, under execution; for instance, because of the clause in § 4112, "Such deputies shall have authority to do all the acts and duties enjoined upon their principals?" The answer would be found in § 2485 of the code. But appellee may claim that the deputy might make the conveyance after the death of the principal under the authority of § 3079, but he could not, because such a contingency is provided by § 2442.

A deputy sheriff cannot make sale of land for delinquent taxes after the death of the collector and make a valid deed to the purchaser, because there is no one authorized to make the deed but the collector himself, and having no deputy provided by law, in this case there was no one to act. Even though the sheriff had a duly appointed deputy at the time of his death, the deputy could not have acted as tax collector, because the law only authorized him to perform the duties of sheriff, and tax collecting was not one of the duties prescribed for the sheriff, but for the tax collector to perform.

"A deputy is one who, by appointment, exercises an office in another's right, having no interest therein, but doing all things in his principal's name, and for whose misconduct the principal is answerable. He must be one whose acts are of equal force with those of the officer himself, must act in pursuance of law, perform official functions, and is required to take the oath of office before acting." 5 Am. & Eng. Ency. Law (1st ed.), 623.

This definition of a "deputy" describes the person provided for by § 4112 of the code. In this case the appointment of Applewhite was not in writing, nor did he take and subscribe to an oath, before entering upon his duties faithfully to execute the office of deputy sheriff, nor was the appointment, with the certificate of the oath, filed and preserved in the office of the clerk of the board of supervisors. The most this so-called deputy could claim was that he was a de facto officer and not a de jure deputy sheriff, and this is all that is claimed for him by the appellee. He had no color of title to the office. There must be...