Smith v. Anderson

• Decision Date: 25 May 1942
• Docket Number: 34998.
• Citation: 8 So.2d 251,193 Miss. 161
• Court: Mississippi Supreme Court
• Parties: SMITH et al. v. ANDERSON et al.

8 So.2d 251

193 Miss. 161

SMITH et al. v. ANDERSON et al.

No. 34998.

Supreme Court of Mississippi

May 25, 1942

Henry & Barbour, of Yazoo City, for appellants.

R R. Norquist, of Yazoo City, for appellees.

McGEHEE Justice.

The appellants seek to have cancelled as clouds upon their title to an undivided interest in more than 400 acres of land in Yazoo County, Mississippi, certain tax deeds which purported to convey all of the land to Dr. D. Seward pursuant to tax sale thereof made on August 7, 1933, for the unpaid taxes thereon for the year 1932; also, a deed executed by Seward in favor of the appellee J. R. Anderson, Jr., on August 10, 1936, conveying the land to him for a cash consideration of $259.66 representing the amount paid by Seward at the tax sale together with damages, interest and costs, and the additional taxes accruing during the three year period of redemption. The tax sale being void for want of power on the part of the tax collector to sell lands for taxes in August of that year, as held by this Court in the recent case of Smith v. Hendrix, 181 Miss. 229, 178 So. 819, the appellants were entitled to a decree cancelling the conveyances as prayed for unless the affirmative defense of three years actual occupation under the tax title, as provided for under Section 2288, Code of 1930, for acquiring title, after three years from the date of the sale, was established by the proof. The court below held that such fact was shown, and dismissed the bill of complaint, hence the complainants appeal.

The appellants and the father of the appellee, J. R. Anderson, Jr., had been tenants in common of 311 acres of the land for about 20 years prior to the date of the tax sale, and he had the entire management and control thereof for the purpose of collecting any rents accruing thereon each year and paying the taxes, and with the right on the part of the other tenants in common to receive such distribution of the rents in excess of the taxes as he should deem right and proper, without any requirement for an accounting in that behalf. He performed such agreement until the year 1932, paying the taxes every year and making small remittances to the complainants during only such years as he felt justified in doing so. This 311 acre tract of land was inherited from Mrs. Francis Anderson by her four children, Mrs. M. E. Grissom, now deceased, who was the mother of complainants, and Clarence, Henry and J. R. Anderson, Sr., as tenants in common, and it has remained undivided. During the early part of the year 1932, Clarence Anderson, who had never married, died, seized and possessed of his interest therein, and also of a one-half interest in 102 acres as a tenant in common with J. R. Anderson, Sr., whereupon the complainants became the owners of a one-third interest in the 311 acre tract and a one-sixth interest in the 102 acres, as tenants in common with J. R. Anderson, Sr. and others. The wife of J. R. Anderson, Sr., also died in the early part of 1932, when their son, Hal Anderson, moved into the house with his father, and was permitted to take full charge and control of the said 311 acre tract, renting out such portion thereof as was cultivatible, collecting all rents derived therefrom, amounting to between $200 and $350 per year, including the subsidies received from the Federal Government; under the obligation to pay the taxes thereon, which his father understood was being done from year to year, until he learned during the year 1936, after his other son, J. R. Anderson, Jr., had purchased both tracts of land from Dr. D. Seward, that all of the land had been sold for the unpaid taxes thereon for the year 1932, amounting to approximately $90.

It also appears that the 102 acre tract was leased by J. R. Anderson, Sr., during the year 1932 to one Smith, who paid him approximately $100 as rent thereon; that beginning with the year 1933, J. R. Anderson, Sr., rented this tract to Sam Hood for one-fourth of the crops, amounting in value to more than $100 per year, and continued to do so every year until after the filing of this suit on May 16, 1940, receiving the rents derived therefrom in his own right, as he had done prior to the tax sale of August 7, 1933. Likewise, his son, Hal Anderson, who had the full management and control of the 311 acre tract continued to receive the rents and subsidies from it from 1933 until after the filing of this suit, the same as he had done as to the rents in 1932, prior to the tax sale. Hal Anderson did not live on this tract, but continued to live in the house with his father, according to their testimony. But if we should assume that Hal Anderson and his father actually occupied the two tracts of land in question, following the purchase thereof by J. R. Anderson, Jr., from Dr. Seward three days after the alleged tax title matured, nevertheless, there was no change whatever in their physical possession or occupancy after the tax titles matured in 1936 as compared to that exercised by them prior thereto and before the tax sale occurred. During the period allowed for redemption they were in possession of the lands by virtue of the agreement existing between the complainants and J. R. Anderson, Sr., as tenants in common, whereby he was to collect the rents and pay the taxes every year, and it is not contended that anything occurred that would give notice to the complainants that they were claiming to hold the lands otherwise, either before or after the expiration of the period of redemption. In fact, during the three years of alleged actual occupation following the maturity of the tax titles, J. R. Anderson, Sr., made some small remittances to the complainants of rents which had previously accrued, and without informing them of any change in the former status of the title. Moreover, one of the complainants visited J. R. Anderson, Sr., from time to time during the three years following the period of redemption, and nothing was brought to her attention to indicate that J. R. Anderson, Jr., was claiming the land under the alleged tax title, or that the lands had ever been sold for taxes. J. R. Anderson, Jr. testified that he had never been on the land at any time subsequent to the tax sale. He was asked whether he had rented the lands to Hal and his father, and replied: "Rented it for the taxes and up-keep. I had put out four years' taxes and I didn't want to put it out. I didn't want Dr. Seward to have it-I didn't want the heirs to lose it, and I thought if anybody in Yazoo County was entitled to it I was." He was then asked, "Did they ever pay you back any of the money paid to Dr. Seward?" His answer was: "No, sir. I have got it on the book. I think I have got it listed to the estate. I have got a record of it, I was out so much money." Question: "Which estate?" Answer: "Anderson estate."

He further testified that he didn't know whether Hal and his father paid the taxes or not after he purchased the land from Dr. Seward and turned it over to them. He had not received any rents or profits from the land since his purchase, and had no agreement that he was to do so, but says that he turned it over to them, and told them that he didn't intend to "put out another nickel taxes, up-keep or anything else" on it. It was shown without dispute that thereafter Hal Anderson, and not the appellee J. R. Anderson Jr., rented out the 311 acres each year, received all the rents and profits derived therefrom in his own right, and that J. R. Anderson, Sr., did likewise as to the 102 acres; and, as heretofore stated, he was not sufficiently interested to ascertain whether or not they were keeping the taxes paid from year...