Rast v. Terry
| Decision Date | 12 January 1976 |
| Citation | 532 S.W.2d 552 |
| Parties | Tony Glenn RAST, Appellant, v. R. V. TERRY et ux., Elizabeth C. Terry, Appellees. |
| Court | Tennessee Supreme Court |
Michael D. Galligan, McMinnville, DeWitt Puckett, Smithville, for appellant.
W. G. McDonough, McMinnville, for appellees.
This is a suit to set aside a tax deed.
The principal basis of the attack by the former property owners, who held the property as tenants by the entirety, is lack of actual or constructive notice of the tax sale. This, in turn, rests upon the alleged failure of the county sheriff to make due return of the process, 'not to be found in my County' as required by Section 21--212 T.C.A. A secondary basis is that the record does not show that the Court directed the Clerk and Master to make publication as provided by law for non-residents. The Chancellor upheld these contentions, declared the tax deed to be void and set it aside.
We disagree.
By consent of the parties this controversy was submitted to the trial court for determination on the pleadings. 1
It is alleged in the complaint The record indicates that process was returned as to R. V. Terry 'not to be found in my County' . . .
It was averred in the answer:
It is admitted . . . that the Sheriff, being unable to serve the summons in the matter on the Terrys, or either of them, returned said summons marked 'not to be found in my County.'
When the allegations of the complaint are admitted in the answer the subject matter thereof is removed as an issue, no proof is necessary and it becomes conclusive on the parties. Gibson's Suits in Chancery, § 410 (Fifth Ed.)
We, therefore, hold that the record shows that process was returned 'not to be found in my County.' 2
Next, the Chancellor held that 'the record does not disclose that there was any order by the court authorizing or directing the Clerk and Master to make publication. . . .'
The matter of publication is governed by statute. Section 21--212 T.C.A. outlines the conditions under which personal service of process may be dispensed with, and concludes with the proviso:
To dispense with process in either of the above cases, the facts shall be stated under oath in the bill, or by separate affidavit, or Appear by the return. (Emphasis ours).
Section 21--213 T.C.A. provides, in pertinent part:
(T)he clerk, as soon as the necessary affidavit is made, shall enter upon the rule docket an order requiring the defendant to appear at a certain day therein named . . .
It will be noted that this statute, in precise terms, would only authorize the rule docket entry in those cases supported by affidavit. When this section and the preceding section are read in the light of their manifest purpose, it becomes evident that it was the legislative intent that the docket entry be supported by affidavit Or return. This is the construction placed upon these statutes by Gibson's Suits in Chancery, Sec. 205 (Fifth Ed.), wherein it is said:
(T)he clerk as soon as the necessary affidavit Or return is made, shall enter upon the rule docket an order. (Emphasis ours)
Section 21--214 T.C.A. provides that 'the Clerk shall forthwith cause a copy of this order to be published. . . .'
The statutory scheme obviously contemplates that the clerk perform these ministerial duties without any order of the court directing publication.
We so hold.
From the facts, as found by the Chancellor, that a return not to be found etc., was not made, and that the court did not issue an order directing publication, the chancellor concludes that the defendants were not served with process or brought into court by publication. Assuming the facts so found to be true, the conclusion reached is a Non-sequitur and is an incomplete and insufficient basis for voiding the tax deed.
This actually disposes of the assignments made in this Court, but it leaves the controversy dangling without decision. This record is not in shape for orderly appellate review nor is it sufficiently complete to support a decision on remand.
The Chancellor, in his memorandum opinion, said in part:
All of the tax proceeding was conducted while the undersigned was Chancellor. The Court can recall of his own knowledge that the tax suit in question was proceeded with only with great difficulty. A large part of the problems came as a result of the failure of officers to serve process. The Court recalls that at one time the entire tax proceeding was halted due, as this Court recalls, to the Court's belief that large numbers of defendants were not properly before the Court.
This is a significant--and perhaps controlling--finding, but it is totally lacking in support in this record, and adequate appellate review is precluded.
We are left with no choice but to vacate the judgment and remand for further proceedings. On remand the Chancellor will hear proof designed to clarify the issues presented in this controversy. We identify the issues but do not restrict the Chancellor to those discussed herein.
The threshold determination on remand must be the efficacy of defendant's affirmative plea of the statute of limitations as incorporated in § 67--2025 T.C.A. which provides, except as to persons laboring under disability, that
No suit shall be commenced in any court of the state to invalidate any tax title to land after three (3) years from the time said land was sold for taxes. . . .
The complaint alleges that '(t)he record indicates that the sale was conducted on March 5, 1970.' The answer avers positively that the sale was held on March 5, 1970. However, the tax deed exhibited to the answer shows affirmatively 'upon the 11th day of May 1972, said tract or parcel of land was struck off and sold to Tony Glenn Rast'. The suit to set aside the tax sale was instituted on 5 May 1973, or over three years after the land was sold, if the sale was in fact conducted on 5 March 1970.
This, however, does not in and of itself require the dismissal of plaintiff's suit. It is...
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