Pool v. Ellis

• Decision Date: 21 March 1887
• Citation: 64 Miss. 555,1 So. 725
• Court: Mississippi Supreme Court
• Parties: SETH P. POOL v. JESSE ELLIS ET AL

1 So. 725

64 Miss. 555

SETH P. POOL v. JESSE ELLIS ET AL

Supreme Court of Mississippi

March 21, 1887

APPEAL from the Chancery Court of Clay County, HON. F. A. CRITZ Chancellor.

Alfred Ellis died intestate in October, 1866. On December 10, 1866 Thomas S. Ellis was appointed administrator of his estate. On April 30, 1867, there were duly registered and probated certain claims of Seth P. Pool against the estate of Alfred Ellis, all of which claims were then past due. On September 9, 1869, the administrator presented his petition to the probate court, and asked that the estate be declared insolvent, which was duly done by a decree of the chancery court on November 2, 1872. Accordingly, the lands of the estate were ordered by the court to be sold, and on December 1, 1872, the administrator sold certain of these lands in accordance with its direction in two tracts, each tract containing more than one hundred and sixty acres, the purchase-money to be paid one-half cash and balance one year thereafter. Seth P. Pool became the purchaser of both tracts for one thousand five hundred and forty-five dollars and fifty cents, paying to the administrator seven hundred and sixty-eight dollars and sixty-five cents cash, and on January 3, 1873, the further sum of six hundred and eighty-eight dollars and sixteen cents, five hundred dollars of which the administrator used in paying a debt against the estate, and the balance he wasted or used for his personal benefit.

Soon afterward, Pool and the administrator having become convinced that this sale was void, agreed that another sale should be had, and that no conveyance of the lands under the first sale should be made. On December 29, 1873, the lands were again sold in tracts not exceeding one hundred and sixty acres, and Pool again became the purchaser for two thousand and forty-three dollars and twenty-five cents. It was understood between the administrator and Pool that the amount, one thousand four hundred and fifty-six dollars and eighty-one cents, paid the former for the lands on the first sale should be credited on this second purchase. This sale was regular in all respects, and was duly reported by the administrator, but neither sale was ever confirmed by the court.

After this second sale Pool went into possession of the land, but whether it was in 1874 or 1875 is a matter in dispute. On March 1, 1875, Pool bought the lands in question at a sale of the same for the taxes of 1874, and certainly was soon afterward in possession thereof, and remained in possession to the institution of this suit.

On August 19, 1880, Jesse Ellis and others, heirs of Alfred Ellis, deceased, brought an action of ejectment against Pool to recover possession of these lands. Thereupon Seth P. Pool exhibited his bill in the chancery court against the plaintiffs in ejectment, in which he set out the above facts and offered to pay whatever sum was due on his purchase, and prayed that the title to the lands bought by him complainant, at the administrator's sale, be divested out of all of said heirs of Alfred Ellis, deceased, and vested in a commissioner, who shall convey the same to complainant; that the tax-title of complainant be confirmed and quieted, and that the plaintiffs in the ejectment suit be perpetually enjoined from all attempts to invalidate the title of complainant. The bill further prays that if the title derived from the purchase at the administrator's sales or at the tax sale, or either of them, should be declared void, that complainant be granted a lien on the lands for the purchase-money paid by him to the administrator, and for general relief.

The Chancellor decreed that the first sale was void because in violation of § 18, art. xii, of the constitution; that complainant was entitled to a deed by virtue of the second administrator's sale on the payment of the price; that the tax sale and the title derived therefrom was void because, as to a part, the assessment and deed are uncertain, and because of an excessive levy, and because the complainant, Pool, being in possession of these lands under a contract of purchase, was bound to pay the taxes due thereon, and could get no right whatever by a purchase from the tax collector. The court ordered that an account be stated between Pool and the estate of Alfred Ellis, deceased, directing that Pool be charged with the amount, two thousand and forty-three dollars and twenty-five cents, his bid for the lands purchased at the second administrator's sale; that he be credited with five hundred dollars, that being the amount of the purchase-money paid by Pool to the administrator, which had been used by the latter in paying a debt of the estate, and also that he be credited with several of the claims held by him against the estate, and probated as above stated, and also that he be credited with a certain judgment of E. B. Gaston against the estate of Alfred Ellis, deceased, which was rendered on June 20, 1870, and assigned to Pool on August 24, 1881; that he be charged with rents on the land and credited with improvements thereon. The court also ordered that an account be stated between the administrator and the estate, and that the interest of Thos. S. Ellis, administrator and heir of the estate of Alfred Ellis, still due after charging him with the funds of the estate wasted by him, and crediting him with the debts due him from the intestate, be subjected to the payment of that part of the purchase-money wasted or used by said administrator for his own personal benefit. Upon this basis of calculation Pool was found to be indebted to the estate in the sum of two thousand one hundred and fifty dollars and ninety-one cents, which was ordered to be paid to the defendants, heirs of Alfred Ellis. The Chancellor found as a fact that the administrator had wasted or used for his own benefit all the available assets of the estate before Pool made any payment on his first purchase of the land. From the decree herein the complainant appealed.

Decree affirmed.

Barry & Beckett, for the appellant.

1. The first sale by the administrator was held void under § 18, art. xii, of the constitution, which provides that "all lands held in pursuance of decrees of courts on execution shall be divided into tracts not to exceed one hundred and sixty acres." But that was disregarding § 16, art. vi, which provides that the chancery courts shall have "FULL jurisdiction in all matters of equity and in matters testamentary and of administration."

2. If the tax levy was excessive it cannot be shown. It is provided that "no suit shall be commenced in any court of this State to invalidate any tax-title to lands after three years from the time said lands were sold for taxes." Code 1871, § 1709.

The defendants did commence their action of ejectment for this purpose, and this bill enjoins them. There are decisions to the effect that where a party, in or out of possession, is allowed to file a bill to remove clouds that this statute commences from the date of sale. We had such a statute. Code 1871, § 975; Cooley on Taxation 348-350.

But to avoid any doubt on this point, the bill shows and the proof shows that Pool went into possession immediately after his purchase in 1876, and has remained in possession ever since. Yet the court holds that we are not protected by this statute. There is no conflict at all in the decisions that it protects us after three years from the time of taking possession.

But the court below seeks to avoid it by finding, first, that we were in possession at the sale, and therefore, could not buy, and, second, that the deed is void for ambiguity. The court below seemed to suppose that the principle of the case of McGee v. Holmes, 63 Miss., applied. But the ground of that decision was, that the tenant "owed the duty of discharging the taxes for which the sale was made." 63 Miss. 53.

And it is laid down by the authorities that in order to make out a disqualification to purchase at a tax sale that possession is not sufficient, nor is possession under a void deed nor a void deed without possession nor any other thing, except an obligation to pay the taxes. Branson v. Yancy, 1 Dev. Eqty. 77, 82; Curtis v. Smith, 42 Iowa 665; Link v. Doeffer, 42 Wis. 391; Home Savings Bank v. Boston, 131 Mass. 278, 279; 44 Iowa 133, 134; Blackwood v. Cliett, 30 Mich. 118, 121, 122; Moss v. Shear, 25 Cal. 38, 44, 45; Blakely v. Bester, 13 Ill. 708, 714; Coxe v. Gibson, 27 Pa. St. 160, 165; Bowman v. Cockriel, 6 Kan. 331, 332; Morrill v. Douglass, 17 Kan. 291; Cooley on Taxation 348-351 and notes.

3. The court erred in not allowing Pool credit for the one thousand four hundred and fifty-six dollars and eighty-one cents paid by him at first sale. It is a universal rule in law that a party cannot blow hot and cold. That he cannot repudiate a transaction and yet claim a benefit from it. The defendants claim and the court finds that Pool cannot claim that he paid the purchase-money at the first sale in good faith, and therefore is entitled to the benefit of the two years' statute of limitation, because he agreed and consented that this sale should be void, and that a resale should be had and that he should have credit for his one thousand four hundred and fifty-six dollars and eighty-one cents at the resale. That doctrine is monstrous to me. He waived the first sale if at all on the agreement as found by the court that he was to have the benefit of this money at the second sale. The transaction must stand or fall together. If he is denied this credit on the second sale then the plainest principles of justice require that he be remitted to all his rights under the first sale. And if the court holds that he cannot claim under the first sale because he waived on this agreement, then...