Shell v. Duncan
| Decision Date | 23 November 1889 |
| Citation | 10 S.E. 330,31 S.C. 547 |
| Parties | SHELL v. DUNCAN et al. |
| Court | South Carolina Supreme Court |
Appeal from common pleas circuit court of Laurens county: J. B KERSHAW, Judge.
Action by G. W. Shell, as administrator of John T. Duncan, deceased against Elliot Duncan, J. W. Copeland, and others. From the decree, J. W. Copeland appeals.
H. Y Simpson, for appellant.
Suber & Caldwell, Ferguson & Featherstone, and Ball & Watts, for respondents.
This case involves the validity of a tax-title, under which James W. Copeland, appellant, claims the land in dispute. The land became delinquent in the fiscal year commencing November 1 1885. Under the act to raise supplies and make appropriations for that year, all taxes became due and payable from the 15th of October to the 15th of December, 1886, and by the twelfth section thereof all real property returned delinquent, etc., was required to be offered for sale on the first Monday in March, 1887, after due advertisement as "now provided by law;" the act of 1882 having provided two weeks' advertisement. If there had been no change, the delinquent lands, under this act, should have been sold on the first Monday in March, 1887, after advertisement of two weeks as therein provided; but the general assembly of 1886, towit, on the 24th of December, 1886, by joint resolution, extended the time for the payment of the taxes of that fiscal year to January 15, 1887; and this extension having cut down the time between the falling due of the taxes and the time for the sale as provided in the original act, to-wit, one month, the comptroller general extended the time of the sale to the first Monday in April, 1887, giving by this extension the two months and a half between the falling due of the taxes, as provided in the joint resolution above, and the sale, as had been given in the original act. Under this extension the land in question was sold, as delinquent lands, on the first Monday in April, 1887, and was purchased by the appellant, Copeland, who received a deed from the auditor. At the trial the appellant introduced this deed, and stood upon it, without more. No evidence whatever was introduced or offered by the respondents. The master found the deed invalid, and this finding was sustained by the circuit judge; hence this appeal.
The effect of a valid tax-deed is to divest title, and to transfer the land from the delinquent tax-payer to the purchaser at the tax-sale; and, inasmuch as at such sales it became notorious that the amount paid by purchasers was uniformly trifling, in comparison with the value of the property sold, it soon became an established principle and a settled rule, in all the states, that in a contest over such sale the onus was upon the purchaser to prove affirmatively and rigidly every prerequisite required in the tax act; and so rigidly was this principle enforced by the courts every where, and so difficult was it for purchasers to comply with this rule, that it soon became proverbial, as was said in O'Grady v. Barnhisel, 23 Cal. 287, "that a tax-title was no title at all, and a sale for taxes was as near a mockery as any proceeding having the appearance of legal sanction could be." The difficulty in all such cases was to prove the existence of all the prerequisites, great and small, required by the acts and demanded by the courts, which in practice proved to be almost impossible. To relieve tax-sales from this mockery, and to give some efficiency to the tax machinery, by which the state is supplied with the means necessary to its existence, acts have been passed in many of the states abrogating the rigid rule referred to above, and giving a prima facie presumption of validity to tax-deeds and throwing the onus of showing invalidity upon the party assailing them. There is such an action this state, (section 313, Gen. St.,) which provides as follows: "The conveyance of land sold at any delinquent land sale shall be prima facie evidence of title, and shall create the presumption that every prerequisite of the law has been fully complied with; the burden of proof being in every instance upon the party impugning such conveyance." Now, what is the true meaning of this section, and what effect is it to have upon tax-sales in this state? Is it to be enforced, or is it to be disregarded? While it is conceded that, in the absence of any and of all statutory provisions to the contrary, it is a settled rule of law, as stated above, that upon a sale of land for delinquent taxes neither a tax-deed itself, nor any recitals contained therein, are evidence against the owner that the proceeding has been regular, and therefore, in such case, that the necessity of affirmative proof by the purchaser of all the legal prerequisites, even in the minutest degree, must be made, yet can it be said, in the face of this section, that this necessity shall exist here? The language of the section is by no means ambiguous. On the contrary, it is plain, explicit, and direct. It provides, in express terms-- First, that the conveyance (the deed of the auditor) shall be prima facie evidence of title; second, that it shall create the presumption that every prerequisite of the law has been complied with; third, that the burden of proof in every instance is upon the party impugning such conveyance. In other words, that the purchaser has nothing to do but to throw down this deed, and there to rest until the assailing party shall show by evidence that some material prerequisite--some necessary, preliminary step in the tax machinery--has not been complied with; and upon the failure to show this the deed must stand. This may or may not be a wise act, and, no doubt, under its operation valuable real estate may sometimes change hands for a mere song; but what has the court to do with that matter? The act is upon the statute-book. It is the law of the state, and the citizens of the state have been invited thereby to attend tax-sales, and to purchase property under its protection; and the courts cannot hesitate to enforce it on the ground of dangerous consequences. If it be a bad law, it should be repealed by that power authorized to repeal as well as to make laws; and, as was once said by a distinguished official of this country, "there is no easier way of having a bad law repealed than by rigidly enforcing it while it is the law."
Now the pertinent question arises, did the assailing parties below show by evidence in this case, affirmative or otherwise, that any prerequisite had been omitted by the officers charged with the tax duties in the sale in question? The onus to do this was clearly and absolutely upon them; or section 313 is even more than a mockery,--it is a legislative fraud. No testimony was introduced by the respondents; not a word. It is clear, then, that the assailants have not removed the prima facie presumption in favor of appellant by any affirmative evidence of their own. It is contended, however, that such evidence is found in the deed of the appellant, in its recitals. Now, conceding that an assailing party may rely upon the recitals in the deed, but yet this could only be effectual, not where the recitals fail to show a compliance in every particular, but only where they affirmatively show a non-compliance in one or more of the necessary prerequisites. In other words, the deed of the auditor is not bound to state in its recitals that such prerequisite, step by step, was taken and performed. It may state nothing, in so far as the prima facie presumption is concerned, in the first instance. But if it does contain recitals as to what was done, and these recitals show that certain prerequisites were omitted, and others, not required, were done in their stead, then it may be that the assailing party could rely on these recitals as the foundation of its attack. This seems to have been the course in part adopted in the assault below. The master, holding, as matter of law, that the sale should have been in March, 1887, as required by the act of 1885, supra, and finding as matter of fact from the recitals in the deed that said sale was not made until April, 1887, held that it thus appeared from said recitals that a material prerequisite, as the time of the sale, had not been complied with, and consequently that the said sale was invalid. The circuit judge, in brief terms, affirmed this holding of the master. It was contended, however, on the part of the appellant, that the time of the sale had been extended by the comptroller general until the first Monday in April, and that said sale took place on that day, in accordance with this extension, and after due advertisement; all of which also appeared in the recitals of the deed. The pivotal point of the case, then, as it seems to me, is, whether the comptroller had the right and power to extend the time of said sale. If he had such power, whether he exercised it in the precise mode prescribed by the act--to-wit, with the approval of the governor--or not is immaterial, in so far as the prima facie presumption arising from the deed itself is concerned; because, in the absence of evidence on the part of the respondent that the comptroller had failed to exercise this power correctly as to the manner and form, the court must presume that he did, under the operation of section 313, Gen. St. Did the comptroller have this power? Section 592, Gen. St., which is a section in the chapter prescribing the duties and powers of the comptroller, provides as follows. The comptroller general with the approval of the governor," may extend the time for the performance of the duties imposed upon the county officers, or for the assessment and collection of taxes; and, when such assessment and collection is necessarily delayed, the comptroller general may postpone...
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