Seward v. Dogan
| Decision Date | 22 December 1944 |
| Docket Number | 35709. |
| Court | Mississippi Supreme Court |
| Parties | SEWARD v. DOGAN. |
Suggestion of Error Sustained March 12, 1945.
See 21 So.2d 292.
In Banc.
Henry & Barbour, of Yazzo City, for appellant.
Caldwell & Caldwell, of Charleston, for appellee.
From April 5, 1937, up to and including the first Monday in January, 1940, appellee Dogan was Sheriff and Tax Collector of Tallahatchie County. During that period appellant Seward at various land tax sales was the purchaser of 407 different pieces of land, and was required to pay for each purchase the sum of $1, in addition to the statutory charges. Seward claims that the additional charge of $1 was unauthorized by law, and by this suit seeks to recover the same, with interest, from the Sheriff and Tax Collector. The amount with interest, at the time the action was begun amounted to $484.01. By agreement the cause was tried by the Circuit Judge, acting as judge and jury. The court rendered judgment for the Sheriff and Tax Collector, from which Seward prosecutes this appeal. The facts were agreed on, which leaving off the formal parts, are in this language:
'It is agreed that on each of the items shown by Exhibit 2 to the declaration wherever the word 'due' appears the Sheriff collected from the said D. Seward, the bidder at the said sale, the sum of $1.00 in addition to the other charges as the amount due him for each conveyance of lands sold to individuals for taxes, the same being claimed to be due under Section 1789 under the paragraph thereof, 'For collecting delinquent taxes, etc., (d) For each conveyance of land sold to individuals for taxes $1.00.'
'It is agreed that the said Exhibit 2 shows that various sales and that in each case where the word 'due' appears the said D. Seward was the purchaser of the lands shown at the delinquent tax sales on the respective dates shown and that in each case he paid the sum of $1.00, except in the sale of lands of J. A. Allison on September 19, 1938, the amount so collected was 80¢ instead of $1.00.
'It is further agreed that no deeds to purchasers were executed by the Sheriff and lodged with the Chancery Clerk in any of the said sales listed on said Exhibits.
'It is further agreed that upon the purchase of the lands at the tax sale by D. Seward the sheriff, Harry H. Dogan, executed and delivered to the purchaser, D. Seward, the proper receipt for the purchase as required by Section 3254 of Code of 1930, as amended.
'It is further agreed that the Sheriff, Harry H. Dogan, filed a certified list of the lands sold by him to individuals with the Chancery Court in each instance as required by Section 3256 of the Code of 1930, as amended.'
Section 1789, Code of 1930 (section 3936, Code of 1942), fixing the fees the Sheriff and Tax Collector shall be entitled to, provides, among other things: '(d) for each conveyance of lands sold to individuals for taxes, $1.00.' Prior to the Code of 1930 the conveyances to tax sale purchasers after the period of redemption has expired, were required to be made by the Sheriff and Tax Collector (Hem.Code 1927, section 8251). By section 3273 of the Code of 1930 (section 9958, Code 1942), they are required to be made by the Chancery Clerk. The statute prescribed the form of the deed. The statute provides, in addition, that 'such conveyance shall vest in the purchaser a perfect title with the immediate right of possession to the land sold for taxes; and no such conveyance shall be invalidated in any court except by proof that the land was not liable so sale for the taxes.'
The question is whether or not the statutory proceeding of the Sheriff and Tax Collector, filed with the Chancery Clerk, now constitutes the 'conveyance' referred to in section 1789 (section 3936, Code 1942) since by section 3273 all tax deeds are required to be made by the Chancery Clerk. In other words, the question is whether the later statute, by implication, repealed the former, so far as the conveyance fee of $1 is concerned. We think that question should be answered in the affirmative.
Section 3256, Code 1930 (Sec. 9936, Code 1942), provides, among other things, that 'the tax collector shall on or before the first Monday of June transmit to the clerk of the chancery court * * * separate certified lists of the lands struck off by him to the state and that sold to individuals, specifying to whom assessed,' etc. The statute provides further, 'The said lists shall vest in the state or the individual purchaser thereof a perfect title to the lands sold for taxes,' etc.
The question is whether or not subdivision (d) of section 1789, allowing the Sheriff a fee of $1 for each conveyance of land sold to individuals for taxes was impliedly repealed by section 3273, providing that tax deeds shall be made by the Chancery Clerk instead of the Sheriff. Stating the question differently; while the sheriffs, and not the Chancery Clerks, were required to make tax deeds, did the statute allow them the $1 each for making the deeds, or for filing the certified lists provided for in section 3256? Which constitutes the 'conveyance', the deed or the list? We are of opinion that it is the deed, and not the list. That means, of course, that when section 3273 took away from the Sheriff and Tax Collector the right to make the tax deeds, and conferred it on the Chancery Clerk, it necessarily repealed the dollar charge provided by subdivision (d), section 1789.
The decisions of our Court referred to in appellee's brief, holding that a compliance by the Sheriff and Tax Collector with section 3256 vests in the purchaser a good title, are not decisive of this question. They simply mean that it puts the purchaser in such a position as to entitle him to a conveyance from the Chancery Clerk, as provided by section 3273. The statutes involved were so construed in Hatchett v. Thompson, 174 Miss. 502, 165 So. 110; Dunbar v. Interior Lbr. Co., 102 Miss. 623, 59 So. 852; Johnson v. Langston, 189 Miss. 649, 198 So. 321.
In the Hatchett case the Court held that a conveyance and the seal of the Chancery Clerk were essential to the validity of a tax deed. In the Dunbar case it was sought to establish a tax title by virtue of proof that the list of tax sales was properly certified by the Sheriff, and the tax deed lost without being recorded. The Court held that the deed was necessary in order to pass title. In the Johnson case the Court held that the tax deed purchaser had no enforcible title without a tax deed. It takes a tax deed from the Chancery Clerk to complete the title of the purchaser at a tax sale. What we have said means that the allowance to the Sheriff and Tax Collector in this case of the fee of $1 would mean that he was paid for a service he was not required to perform. This question was put up to the Attorney General for his opinion. He held as we have. (Vol. 3, p. 470, Sec. 3936, Code 1942.)
It may be pertinent to note that while the statute requiring the sheriff to execute deeds to individual tax purchasers was in force, for which he was allowed $1 each, another statute (Sec. 8250, Hem.Code 1927) required him to file with the Chancery Clerk a list of the lands struck off to the state, for which no compensation was allowed him. The present requirement of filing with the Clerk a list in lieu of executing separate deeds to individual purchasers is simply an enlargement of the former requirement of filing the list of lands sold to the statute.
There is another question in the case: The Sheriff and Tax Collector plead the statute of limitation of three years. If that statute applies all of Seward's claim is barred except $195. However, it does...
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Seward v. Dogan
...SMITH, Justice. This case is before us now on a suggestion of error. The former opinion reversing the trial court may be found in, Miss., 20 So.2d 89. Appellee has filed suggestion of error on the ground that our conclusion heretofore reached was erroneous. The facts of the case have to do ......