Murdock v. Chaffe

Decision Date19 May 1890
CourtMississippi Supreme Court
PartiesCLARISSA MURDOCK v. CHARLES CHAFFE ET AL

FROM the chancery court of Leflore county, HON. WARREN COWAN Chancellor.

The land in controversy was sold to the state July 6, 1868, for the taxes of 1867. The sale was irregular because the board of police in levying the taxes exceeded the limit allowed by law. While the land was held by the state under this tax sale, on the 9th day of May, 1870, it was sold to the liquidating levee commissioners for the levee taxes due thereon for the years 1867 and 1869. This sale was void because made for two years' taxes, and besides, the land was then held by the state. Under the decree of the chancery court of the first district of Hinds county in the case of Green v. Gibbs, such title as the levee commissioners had was purchased by the appellee, Chaffe, and he received a deed. The land being held by the state under the sale of July 6 1868, was sold under the abatement act of 1875, and was again purchased by the state. On March 14, 1884, the act for the benefit of purchasers under said chancery decree was passed. This act is quoted in full in the opinion of the court. Under it, on January 1, 1885, the said Chaffe, who held the levee tax-title, applied for and obtained from S. Gwin, the then auditor, a quit-claim deed, releasing and conveying to said grantee the title of the state. It recited that all taxes had been paid, and only the fee for executing the deed was collected. Afterwards, the appellant, Clarissa Murdock, on December 8, 1886, claiming that this quit-claim was void applied to W. W. Stone, auditor, to purchase said land under the general law. She paid $ 137.49, the state, county and levee taxes due thereon from and including the year 1874 together with all fees and costs, and received a deed in due form of law conveying said land to her.

She then filed the bill in this case to cancel the title asserted by Chaffe, and to confirm her own. She set up the invalidity of the sale to the levee board in 1870, and averred also that the quit-claim deed received from the auditor was void because the taxes had not been paid, as required by the act of 1884, the theory of the bill being that all taxes from the year 1874 were collectible, and that it was incumbent on the auditor, before executing the quit-claim, to collect such taxes, or to be satisfied by the production of tax receipts that the same had been paid. The bill alleged that Chaffe paid the auditor nothing except the legal fees, and that he produced no tax receipts except for 1879 and subsequent years. On final hearing the above facts were shown, and the testimony also showed that the agent of the appellee, Chaffe, applied to purchase the land in 1883, and offered to pay any amount necessary for that purpose, when the auditor informed him that the land was not held by the state, and gave him a written statement to that effect. Afterwards, on January 1, 1885, Chaffe, through his agent, applied to the auditor for the issuance of a quitclaim under the provisions of the act of 1884, and again offered to pay any amount necessary or required in order to obtain said quitclaim, when the auditor, after an examination of the records, announced that nothing was due, and issued the quit-claim on payment of fees only.

It was admitted by complainant that the taxes on the land for 1879 and subsequent years had been paid.

The court refused to confirm complainant's tax-title, but entered a decree fixing a lien on the land for part of the money paid by her on obtaining the deed from the state.

The other facts necessary to an understanding of the case are stated in the opinion.

Decree reversed and cause remanded.

Brame & Alexander, for appellants.

1. The levee tax-title, under which Chaffe claims, is based on a sale made in 1870. As the state then held the land under the sale in 1868, the sale to the levee board was void. Under the act of 1860, after the lapse of five years, the title of the state became unassailable, except for fundamental defects, and it is not claimed that there were any here. Sigman v. Lundy, 66 Miss. 522.

The land, being thus held by the state, was again sold under the abatement act in 1875, when the state purchased, and there is nothing shown against the validity of that sale. So we have not only the five years' lapse of time, but, in addition to that, the sale under the abatement act, which makes the title we acquired from the state perfect.

2. The pretended quit-claim obtained by Chaffe from the auditor on January 1, 1885, was void, because nothing was paid except the fees for issuing it. By the second section of the act of 1884, the auditor is required in express terms to collect all state, county and levee taxes due on lands before executing such a quit-claim. The taxes were due on this land from and including the year 1874. They had never been paid, and had never been abated or released. Therefore, it was the duty of the auditor to collect all taxes from 1874 to 1885 before executing this quit-claim. We submit that the construction sought to be placed on that act by opposite counsel is incorrect. They contend that a purchaser under the decree in Green v. Gibbs, in obtaining the quit-claim is only required to pay the taxes accruing after his purchase from the commissioners, whereas, we contend that all taxes were to be collected back to 1874. To illustrate the fallacy of the position of opposite counsel, let us suppose that A. and B. owned adjoining plantations, both of which had been sold to the levee board in 1870, and both are owned by the state under a previous sale. A. gets a deed from the levee commissioners in 1877, and B. obtains one in 1881. Under the act of 1884 they both go into the auditor's office at the same time to obtain a quit-claim from the state. According to the construction contended for, B. will have to pay from 1881, whereas A. would be required to pay from 1877, or four years longer. Certainly a construction imposing such inequality cannot be sustained.

3. But, suppose we are wrong in the position just discussed. The bill charges positively that the taxes for 1877 and 1878 were not paid, and this is not denied in the answer. So, even under the construction urged by opposite counsel, this quit-claim is void, for Chaffe purchased from the levee commissioners in 1877.

4. The fact that the auditor assumed to issue the quit-claim deed, without compliance with the statute, cannot protect the defendant. The auditor is a ministerial officer. He had no discretion in the matter, and was not empowered to do anything except as authorized by the statute. All he had to do when the application was made for this quit-claim was to examine the records and collect the amount of taxes due. Failing in this plain duty, the quit-claim executed by him was void. Matthews v. Goodrich, 102 Ind. 557; Drew v. Valentine, 18 F. 712; Parkersburg v. Brown, 106 U.S. 487; Myers v. The State, 61 Miss. 138; McCulloch v. Stone, 64 Ib. 378; Hardy v. Hartman, 65 Ib. 504.

Obtaining the quit-claim under the act of 1884 was a purchase of the state's title, and not a redemption, as was held in Paxton v. Valley Land Co., ante, 96. We admit that there are authorities which hold that, if through inadvertence or fraud of the officer, a tax-payer, in endeavoring to redeem his land, fails to pay the full amount due he is not cut off, provided he offers within a reasonable time to pay the balance. In that case the tax-payer has the title to the land, and there is only a lien or charge upon it for the taxes; but in this case the state held the absolute title, and gave these purchasers the extraordinary opportunity to purchase the land within a limited time, upon the express condition that all the taxes should be paid. As in the case of the United States lands, no officer of the state is authorized to divest the state's title in the sale of lands without complying literally and strictly with the statute giving the power. Swann v. Miller, 82 Ala. 530; Whiteside v. United States, 93 U.S. 247; Green v. The State, 56 Miss. 771.

5. Although the appellee appears here as a buyer-up of tax-titles, he was in default as to the payment of taxes due the state at the time of appellant's purchase, and has continued so ever since. He does not offer now, and has never proposed to pay all the taxes due. On this point, see Blazier v. Johnson, 11 Neb. 404; Miller v. McGehee, 60 Miss. 903.

6. There is nothing in the alleged offer to pay all the taxes. The testimony clearly shows that the effort was to obtain through the quit-claim the title of the state without paying anything. It was incumbent on the auditor to collect all the taxes, and his failure to do so vitiated the quit-claim and left the title in the state, where it was vested when we purchased.

Rush & Gardner, on the same side.

1. Whether the state's title was unimpeachable at the time of the sale to the levee board was immaterial, since it afterwards became so. Sigman v. Lundy, 66 Miss. 522.

2. The appellee did not acquire the title by the pretended quitclaim made in January, 1885, because the taxes from 1874 up to that time were not paid. McCulloch v. Stone, 64 Miss. 378.

3. The state was not estopped to question the validity of this quit-claim, nor is the appellant, as a subsequent purchaser from the state. As we understand the doctrine of estoppel there is not a single requisite in this case to sustain its application. See Turnipseed v. Hudson, 50 Miss. 429; 6 Wait's Ac. & Def. p. 681, and authorities there cited. The doctrine of estoppel does not apply to the state. Taylor v. Shufford, 4 Hawks [N. C.], 116. Nor is a grantee estopped to deny what the state is at liberty to assert. Candler v. Lunsford, 4 Dev. & Bat. [N. C.] ...

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