Russell Inv. Corporation v. Russell

• Decision Date: 20 June 1938
• Docket Number: 33028
• Court: Mississippi Supreme Court
• Parties: RUSSELL INV. CORPORATION v. RUSSELL

178 So. 815

182 So. 102, 182 Miss. 385

RUSSELL INV. CORPORATION v. RUSSELL

No. 33028

Supreme Court of Mississippi

June 20, 1938

(Division A.)

1 TAXATION.

Though a tax sale is subject to be defeated by redemption within time and in manner prescribed by law, if there is no redemption, sale becomes valid, and title relates back to date of sale and takes precedence over any mortgage, deed, or other instrument executed by owner during period of redemption (Laws 1934, ch. 196, secs. 1, 3).

2 TAXATION.

The Legislature, in enacting statute providing that action attacking validity of tax sale of land to state must be brought within two years after land is sold or forfeited to state, intended that statute should apply to all sales theretofore made to state, regardless of whether period of redemption had expired at time of passage of statute where Legislature was confronted with problem of trying to bring back on assessment rolls for revenue-producing purposes approximately 1,300,000 acres of land which had been sold to state for delinquent taxes (Laws 1934, ch. 196, secs. 1, 3).

ON SUGGESTION OF ERROR.

(Division A. June 20, 1938.)

[182 So. 102. No. 33028.]

Division A

February 14, 1938

APPEAL from the chancery court of Lamar county HON. BEN STEVENS Chancellor.

Suit by S. H. Russell against the Russell Investment Corporation to cancel tax sales of land. From a judgment overruling a demurrer, defendant appeals. Reversed and rendered.

ON SUGGESTION or ERROR.

Suggestion of error overruled. Former holding in 178 So. 815, adhered to, but final judgment rendered set aside and cause remanded.

Reversed, and decree here for appellant. Suggestion of error overruled.

Garraway & Easterling, of Jackson, for appellant.

We submit that the court committed error in overruling the demurrer to the amended and supplemental bill, and should have sustained the demurrer and dismissed the bill of the complainant in the lower court. The demurrer raised several legal questions, but the main question that we direct the court's attention to is that the complainant, appellee herein, let his land sell for the delinquent taxes due thereon for the year of 1931, on April 4, 1932, and never made any attempt to pay the taxes or to redeem his land, but waited until November 16, 1936, nearly four years from the date of the sale of said land for the delinquent taxes, and over two years and seven months after the legislature had enacted Chapter 196 of the Laws of 1934, which placed a limitation of two years from the date of said enactment to file a bill to attack the validity of such sale, and to redeem said land and which bill went into effect April 4, 1934, and which act provided that all lands sold for taxes or forfeited to the state heretofore, the owner would have two years from the date of said enactment to recover same, as to all lands sold prior to said enactment, and two years after the redemption period as to all lands sold subsequent to said enactment.

The Legislature has a right to fix limitations and to shorten or extend the limitations already fixed.

McBride v. Burgin, 142 Miss. 859.

General and special laws of limitation are recognized as founded on sound policies, except for some feature specially obnoxious to constitutional objections.

Nash v. Fletcher, 44 Miss. 609.

The sheriff and tax collector had a right to have some one under his control and supervision to cry off this land, and when ratified by him was his act, and if this was not true, it would be de facto acts and would be legal and binding and could not be attacked in a collateral attack.

Swan v. Smith, 58 Miss. 877; Railroad Co. v. Bolling, 69 Miss. 255, 13 So. 844; Jones County Land Co. v. Fox, 120 Miss. 798, 83 So. 241.

The sheriff under authorities cited including trustees would have a right to employ agents to perform ministerial acts, and when ratified would be the acts of the sheriff or the trustee.

Johns v. Surgeant, 45 Miss. 332; Tyler v. Herrin, 57 Miss. 169, 6 So. 640; Duston v. Sharp, 70 Miss. 850, 12 So. 600.

The Legislature has the constitutional power by retroactive legislation to dispense with the necessity of observing prescribed formulas and to cure mere irregularities arising from the mere failure to observe same.

Vaughn v. Swaysie, 56 Miss. 704; Fannie v. Funches, 60 Miss. 541; Nevin v. Bailey, 62 Miss. 433; Bowman v. Row, 62 Miss. 513; Osborne v. Hide, 68 Miss. 45, 8 So. 514.

All defects, irregularities and illegalities, if any, in the assessment, levy or sale of the land was cured by the act of the Legislature of April 4, 1934, Chapter 196 of the Laws of 1934, unless such defects, irregularities and illegalities had been attacked within two years from the date of said enactment as to lands sold prior to said enactment, and a limitation in Section 3 of said act served to vest a perfect title in the state and its patentees, unless the act itself was void.

We respectfully submit that inasmuch as the appellee has had ample opportunity, under the authorities herein cited, to have paid his taxes or to have redeemed his land in the method provided by law, and having failed and neglected so to do that he was precluded from maintaining his bill to do so after the lapse of more than two years from the limitation under the act of the Legislature of April 4, 1934, Chapter 196 of the Laws of 1934, and this case should be reversed, and the demurrer sustained and the bill dismissed.

A. Q. Broadus, of Purvis, for appellee.

The appellant appears to predicate his hope for reversal of this case on the ground that the bill of complaint filed by appellee could not be maintained, because it was barred by the Statute of Limitations, and in support of this, he invokes Chapter 196, Laws of 1934, contending that appellee's bill, which was filed on November 16, 1936, was barred by said statute. The Legislature of 1934 also passed Chapter 337, by virtue of which the appellee here would have had three years in which to have redeemed from said tax sale, and therefore, as we see it, the period of redemption of lands sold on April 4, 1932, was extended to April 5, 1935, then when we revert to the language employed in Chapter 196, "The owner, mortgagee, or other person interested in any land which has been heretofore, or may be hereafter sold or forfeited to the state for delinquent taxes, may bring a suit or action to cancel the title of the state, or its patentees, or to recover said land from the state, or its patentees, on account of any defect, irregularity or illegality, in the assessment, levy, or sale of such land for delinquent taxes, and within two years after the period of redemption shall have expired, as to land hereafter sold or forfeited to the state for delinquent taxes, and not thereafter," the appellee contends that the Legislature intended to extend to former owners, mortgagees, or other persons interested in lands which had been forfeited to the state for delinquent taxes, two years after the period of redemption had expired to bring suit or action to cancel the title of the state or its patentees, or to recover land from the state, or its patentees. Therefore, it is appellee's contention that this action was not only filed within the time designated by law, but he could have filed his suit any time prior to April 5, 1937.

Appellee contends that the Legislature has a right to reduce the period of limitations, but such reduction would only affect sales and contracts executed after the enactment of the statute, and appellee contends that this principle of law is to well settled to be even questioned by anyone.

By the enactment of Chapter 196, Laws of 1934, if the Legislature intended to reduce the period of limitation on all tax sales prior to that date to two years from the date of the statute on all sales to the state since 1928 tax sales, same would have been retroactive and would not have given unto the appellee equal right under the law, and would have been in violation of the State and Federal Constitution, and would have resulted in the Legislature's undertaking to take away in place of adding to the rights that the appellee had under the law prior to the enactment of the statute aforesaid.

The board of supervisors when it acts on assessments is a court of special and limited jurisdiction.

Henderson Molpus v. Gammill, 115 So. 716, 149 Miss. 576.; McDevitt v. Walls, 122 So. 766, 154 Miss. 671; Gardust v. Smith, 122 So. 762, 154 Miss. 787.

The sale is void for the reason that the following jurisdictional facts are not adjudicated: (a) the assessor is not adjudicated as being present as required by Section 3163; (b) the proof of publication must be filed and minutes must so show; (c) there must be an issue of paper printed before day of appearance, and this order only adjudicates that one notice was printed.

There is no presumption of validity, all jurisdictional facts must appear on minutes.

Bd. of Suprs. of Lowndes County v. Otterly, 112 So. 466, 146 Miss. 676; Henderson Molpus Co. v. Gammill, 115 So. 716, 149 Miss. 676; Gardust v. Smith, 122 So. 762, 154 Miss. 787; McDevit v. Walls, 122 So. 766, 154 Miss. 671.

The notice required by Section 3142 is a process of court of special and limited jurisdiction.

Monroe County v. Minga, 127 Miss. 707, 90 So. 443; Bd. of Suprs., Lowndes County, v. Otterly, 112 So. 416, 146 Miss. 118; Robinson v. Bank, 115 Miss. 840, 76 So. 689; Machinery Co. v. Webster Co., 154 So. 723, 170 Miss. 601; Bank of Weir v. Attala Co., 126 So. 192, 156 Miss. 560; Henderson Molpus v. Gammill, 115 So. 716, 149 Miss. 576.

When statute substitutes some other mode of service than personal service, close compliance will be enforced of statute.

Wood v Moran, 55 Miss. 106; Edwards v....