Merritt v. Magnolia Federal Bank for Sav.
| Decision Date | 19 December 1990 |
| Docket Number | No. 07-CA-59288,07-CA-59288 |
| Citation | 573 So.2d 746 |
| Court | Mississippi Supreme Court |
| Parties | George MERRITT v. MAGNOLIA FEDERAL BANK FOR SAVINGS & William F. Jones, Trustee; Ned G. McInnis, Jr. and Jonee M. McInnis. |
Bruce Caldwell, Laurel, for appellant.
Samuel J. Duncan, Moore & Jones, James R. Hayden, John M. Deakle, Hattiesburg, for appellees.
Before HAWKINS, P.J., and PRATHER and SULLIVAN, JJ.
This case is before us on appeal by George Merritt from a summary judgment in favor of Magnolia Federal Bank for Savings, Ned G. McInnis, Jr., and Jonee M. McInnis in the Forrest County Chancery Court. In granting summary judgment for Magnolia Federal and the McInnises, the court held that Magnolia Federal had done all that was necessary to make an effective redemption of the McInnises' property, that the bank's offer within the statutory redemption period to pay all delinquent taxes took away the Forrest County Chancery Clerk's power to issue a tax deed on the McInnises' property, and that Merritt's tax deed on the McInnises' property was void. We affirm.
The property involved in this suit consists of a house and .75 acres of land in Forrest County, Mississippi. The owners of this property are Ned G. McInnis, Jr., and his wife, Jonee M. McInnis. This .75 acres was originally part of a larger tract of land consisting of 4.15 acres, the owners of which were Ned McInnis, Jr.'s parents, Ned McInnis, Sr., and Nell McInnis. At present, Ned McInnis, Sr., and his wife Nell own a life estate in 3.4 acres of the original 4.15 acres, with a remainder in Ned McInnis, Jr., and his wife.
Magnolia Federal Bank for Savings has a first deed of trust on the .75 acres, and under its provisions Magnolia Federal is responsible for paying the ad valorem taxes.
On June 16, 1986, Magnolia Federal received a "Notice to Lienholder" from the Forrest County Chancery Clerk's office and from the City of Hattiesburg that the .75 acres had been sold to George Merritt on September 17, 1984, for the nonpayment of the 1983 taxes and that the tax sale would mature on October 23, 1986, if not redeemed.
By affidavits presented to the court, Magnolia Federal stated that the day after receiving this notice Mary Hooks, Tax Supervisor and Assistant Secretary at Magnolia Federal, phoned both the city and county tax offices and discovered that since 1983 the bank had been receiving and paying the tax bill for the 3.4 acres of land in which Ned McInnis, Sr., and Nell McInnis were life tenants. Magnolia Federal had no lien on this property.
Hooks stated that after discussing the matter with the city and county tax offices on June 17, 1986, she called Doris Rolph at the City Clerk's office and offered to redeem and pay the 1983, 1984, and 1985 city taxes on the .75 acre tract. Rolph told Hooks what Magnolia Federal owed on the McInnises', Jr., property and Magnolia Federal sent the city a check. Magnolia Federal received a release from the city on June 26, 1986. There is no dispute concerning Magnolia Federal's redemption of the city taxes.
Hooks also called Marc Boutwell, a Deputy Chancery Clerk at the Forrest County Chancery Clerk's office, on June 17, 1986, and offered to redeem and pay the 1983, 1984, and 1985 county taxes on the .75 acre tract. Hooks said that the deputy chancery clerk told her that someone had already paid the 1983 county taxes. Therefore, Boutwell only told Hooks the amounts owing for the 1984 and 1985 county taxes on the McInnises's property. Magnolia Federal sent the county a check for the 1984 and 1985 taxes. The bank received a release from the county on June 27, 1986 for the 1984 and 1985 taxes. The 1983 county taxes remained unpaid.
On October 23, 1986, the Forrest County Chancery Clerk executed a tax deed to George Merritt.
On May 5, 1987, Magnolia Federal filed suit to clear their title on .75 acres belonging to Ned McInnis, Jr., and his wife. 1 In its complaint, Magnolia Federal asked the court to declare Merritt's tax deed void and to set aside any interests Merritt had in the property.
Merritt answered the complaint and also filed a counterclaim and a cross claim, seeking to confirm his title under the tax deed.
On September 4, 1987, Magnolia Federal filed a motion for summary judgment. Along with its motion, Magnolia Federal submitted the affidavits of Mary Hooks; Forrest County Deputy Chancery Clerk Marc Boutwell; and Forrest County Chancery Clerk Jimmy Havard. In her affidavit, Hooks set forth the facts as stated above. Boutwell's affidavit stated that he had no independent recollection of Hooks' phone call and that he could present nothing to contradict or confirm Hooks' statement. Havard stated that it was standard practice for Deputy Clerks in the Forrest County Chancery Clerk's office to discuss tax sale information over the telephone with owners and mortgagees of real property and that neither he nor any employee in his office had any independent recollection regarding the substance of Hooks' and Boutwell's affidavits. Havard also stated that he knew of no information to contradict or confirm the affidavits.
George Merritt filed no affidavits of his own to oppose the motion for summary judgment. However, he did file the deposition of Hooks and a brief to support his opposition to the motion. Hooks' deposition and affidavit were consistent.
The Forrest County Chancery Court granted summary judgment for Magnolia Federal on March 9, 1988. The court found that Magnolia Federal had attempted to redeem the property and that it was the clerk's error or oversight that prevented the redemption. The court further held that since Magnolia Federal attempted to redeem the McInnises' property, the chancery clerk had no lawful authority to execute a tax deed to George Merritt.
In this case there has been no contention that the tax sale of the McInnises' .75 acres was void either because the property was incorrectly assessed or that the property was incorrectly described in the tax sale. See Miss.Code Ann. Sec. 21-33-15, Sec. 21-33-59, Sec. 27-35-61 (1972); Miss.Code Ann. Sec. 27-35-49--27-35-53 (Supp.1990).
The only issue in this case is whether the chancery clerk, in light of Magnolia Federal's efforts to redeem the McInnises' property, had the legal authority to execute a tax deed to George Merritt.
Section 27-45-3 of the Miss.Code Ann. (1972) provides in pertinent part that "[t]he owner, or any persons for him with his consent, or any person interested in the land sold for taxes, may redeem the same ... within two...
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Merritt v. Magnolia Federal Bank for Sav.
...to George Merritt as a cloud on the title of Ned G. McInnis, Jr., and Jonee M. McInnis to a lot in Hattiesburg. Merritt v. Magnolia Fed. Bank for Sav., 573 So.2d 746 (Miss.1990). This realty was under a deed of trust in favor of Magnolia Federal Bank for Savings (the bank), which under the ......