Seals v. Perkins

• Decision Date: 21 March 1910
• Docket Number: 13553
• Citation: 51 So. 806,96 Miss. 704
• Court: Mississippi Supreme Court
• Parties: SONONA SEALS v. CALVIN PERKINS

51 So. 806

96 Miss. 704

SONONA SEALS v. CALVIN PERKINS

No. 13553

Supreme Court of Mississippi

March 21, 1910

FROM the chancery court of, first district, Bolivar county, HON MANUEL E. DENTON, Chancellor.

Perkins appellee, was complainant in the court below; Mrs. Seals appellant, was defendant there. From a decree in complainant's favor the defendant appealed to the supreme court.

The purpose of the suit was to confirm the complainant's title to the lands in suit, and to cancel as clouds thereon the several tax titles under which defendant claimed the lands. The facts are sufficiently stated in the opinion of the court.

Decree affirmed.

Fontaine Jones; Coleman & McClurg and W. G. Hardee, for appellant.

The patent executed by the state, dated July 30, 1900, vested in defendant all tax titles to the land held by the state at the date of its issuance, and holding under the same defendant claims title under three other distinct sales for taxes, as follows: (1) under the sale of 1867 to the ten cent levee board; (2) under the sale of 1876 to the state; and (3) under the sale of 1894 to the state.

We contend that the sale of 1867 to the board of levee commissioners of Bolivar, Washington, and Issaquena counties was in all respects a valid sale and that the deed of the tax collector to said board, introduced by defendant, vested an indefeasible title to the land in said board, as is held by this court in the case of Railway Co. v. Buford, 73 Miss. 494.

In the instant case the title of the ten cent levee board to the land in controversy passed to the state under the Act of April 11, 1876 (Laws of 1876, p. 166), and again passed to defendant under the patent of July 30, 1900.

The Buford case is exactly similar and may be said to be upon "all fours" with the case under consideration, and resolves all contentions in respect to the ten cent title in favor of defendant.

In that case, as in the present case, the sale to the ten cent levee board was evidenced by a deed from the tax collector to the treasurer of the board, pursuant to a sale of the land for delinquent levee board taxes on the 15th day of April, 1867.

The statement of facts in the Buford case shows that the railway company in its answer set up the identical tax titles relied upon by complainant (appellee), i. e., a sale to the liquidating levee board not evidenced by a deed; the deed from Gibbs & Hemingway, Commissioners, and averred acquisition of title through a sale under the abatement act. The complainant Buford asserted title under the auditor's deed pursuant to Code 1880, § 581, and thereunder claimed to be the owner of the ten cent levee board which he avers passed to the state under the Act of April 11, 1876, as the defendant in this case claims to be the owned of the ten cent levee board title, and this court in its opinion sustained practically all of Buford's contentions and decided the case in his favor, which decision is decisive of this case, and, in our view, makes it unnecessary to present any additional argument or authorities.

However it is proper to remark that the several tax sales shown in the record, to wit, in 1867 to the ten cent levee board and in 1876 and 1894 to the state, show that complainant did not continuously pay the taxes upon the land, and consequently is entitled to no consideration from the court, as original owner or otherwise, as having paid all taxes upon the land.

In conclusion, we contend that if appellant's title rested solely upon the deed of April 15, 1867, to the ten cent levee board, under Railway Co. v. Buford, 73 Miss. 384, a parallel case in every particular, the decree of the lower court should be vacated and annulled.

Ever since 1895, the date of its promulgation, this celebrated decision has been acquiesced in and relied upon by the bar of the Delta, and especially by that of Bolivar county, in which county the title to approximately 200,000 acres of land is bottomed upon this title, and we respectfully submit that the decision was entirely correct when rendered, and should be reaffirmed in the instant case.

It is now over forty years since the sale to the levee board, and to require specific proof of the adjournment of the sale from day to day, would be imposing at this late day a requirement utterly impossible to meet, but if a witness could be found hardy enough to attempt to swear to the date and hour of transactions of this nature, after such a long flight of time, it is extremely doubtful if any one so credulous as to believe him could be found, much less a court of justice familiar with the frailties of human nature, and, better than all others, supposed to know and value the limits of human memory.

Calvin Perkins, in propria personae.

A document offered by the appellant and excluded was an alleged copy of a recorded list of lands (as to the land in suit) sold by the collector on and after March 13, 1876, for taxes for the year 1875. There was no error in excluding the alleged copy.

The recorded list failed to show that the alleged tax sale of the land to the state on March 13, 1876, was made to the state or to any one else. Neither the caption, nor the body of the list, nor the certificate of the collector, showed to whom the alleged sale was made. No purchaser or grantee was mentioned. The list therefore did not conform to the requirements of the law (Code 1871, § 1698) and was absolutely void, and the alleged sale to the state was therefore a nullity--no sale at all.

There can be no tax sale of land to the state without the list required by the statute. Such list is the deed to the state, and without it no title passes. A deed which fails to designate the grantee is as much a nullity as one which fails to designate the land conveyed. 9 Am. & Eng. Ency. of Law, 132.

The recorded list not only failed to show any tax sale of the land to the state for the reason above given, but it also showed that the alleged sale was not made at the time prescribed by law. The certificate of the collector shows that the lands designated in the list were sold on and after the 13th day of March, 1876, and the caption shows that the lands were sold on and after the 13th of March, 1876, and prior to the first of April, 1876, and the list does not show an adjournment of the sale from day to day. The recorded list also shows that a great many tracts of land were attempted to be sold and were embraced in the list, but it does not show the particular day on which any of the lands were sold.

The certificate of the collector to the recorded list above mentioned does not show on what day the certificate was made; nor does it otherwise appear when the list was made, but the certificate of the chancery clerk as to the filing and recording of the list shows that the list was filed with the clerk on the 8th day of April, 1876. The list, therefore, was not filed at the time required by law. It was required to be filed for the benefit of the owner, so that he might have the whole period of redemption in which to exercise his vested right to redeem. For a part of the time, therefore, during which the owner had the right to redeem the land he was deprived of this right, because no list was filed with the clerk. The list was therefore "not dealt with as required by law," a matter "essential to its validity," and both the list and the alleged sale were thereby rendered null and void. Adams v. Mills, 71 Miss. 150; Day v. Smith, 87 Miss. 395, 405, 39 So. 526; Creegan v. Hyman, 93 Miss. 482, 46 So. 952; Vassar v. George, 47 Miss. 729.

The attempted sale of the lands for taxes in March, 1876, was not cured or validated by Code 1871, § 1709, because it was absolutely void and of no effect by reason of the following fundamental and incurable defects, to-wit:

When a tax sale to the state is claimed and it is not properly shown "that the state became the buyer" at the sale, the alleged sale is absolutely void, and is not cured or validated by section 1709, or the other curative acts. Bennett v. Chaffe, 69 Miss. 279; Pearce v. Perkins, 70 Miss. 276.

Where a tax sale of land is claimed and the tax sales list, or deed, shows that the alleged sale was made on a day other than that prescribed by law, or fails to show a sale on a properly adjourned day of a sale begun on the day prescribed by law, the attempted sale is made without power or authority, and contrary to law, and is absolutely and fundamentally void, and is not cured or validated by any of the curative acts. Kennedy v. Sanders, 90 Miss. 524, and McLemore v. Anderson, 92 Miss. 42, 43 So. 878.

Where a tax sale of land is claimed, and the tax sales list has not been "dealt with as required by law," as where it has not been filed as required by law, or is not kept on file during all the time required by law, the sale is absolutely void, and is not cured or validated by Code 1871, § 1709. Bank v. Railway Co., 72 Miss. 447; Creegan v. Hyman, 93 Miss. 482, 46 So. 952; Vassar v. George, 47 Miss. 729; Adams v. Mills, 71 Miss. 150; Day v. Smith, 87 Miss. 395, 39 So. 526.

Where a tax sale of land is claimed and the tax sales list is not such a list as is "prescribed by the statute," as where it does not describe the land attempted to be sold, or is not certified, the attempted sale is absolutely void, and is not cured or validated by Code 1871, § 1709. Pearce v. Perkins, 70 Miss. 276; Bank v. Railway Co., 72 Miss. 447.

It is contended, however, by the appellant that a tax sale of land to the ten cent levee board on April 15th, 1867, was sustained in the case of Railway Co. v. Buford, 73 Miss. 494, and that the decision in that case must control the present case, and cause the alleged sale to the ten cent levee board involved herein to be held valid, although not made...