Thibodeaux v. Havens

• Decision Date: 21 January 1918
• Docket Number: 19887
• Citation: 116 Miss. 476,77 So. 313
• Court: Mississippi Supreme Court
• Parties: THIBODEAUX v. HAVENS

77 So. 313

116 Miss. 476

THIBODEAUX v. HAVENS

No. 19887

Supreme Court of Mississippi

January 21, 1918

Division B

APPEAL from the chancery court of Jackson county, HON. C. H. WOOD Special Chancellor.

Bill by Mary F. Havens against W. E. Thibodeaux. From a decree for the complainant, defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Denny &amp Heidelberg, for appellant.

In the case of Bell v. Gordon, 55 Miss. 45, the court says "A tax deed raises the presumption that all was done which the law required to be done and that the land was sold in the smallest legal subdivisions." The court has since, in the case of Green v. Williams, 58 Miss. 759, and Wheeler & Wilson Manufacturing Co. v. Ligon, 62 Miss. 564, re-affirmed this doctrine announced above and, in our opinion, then, there can be no question as to everything being legal up to the time of the execution of this deed.

As to the sale of said lands to the state of Mississippi it seems to us that about the same contention is made as to that sale being illegal as there is to the sale to Delmas being illegal. Certainly there is nothing in this record that would suggest any illegality as to either sale except the fact of the supposed double sale. As to that particular feature we submit that there can be no contention under the pleadings and the evidence in this case that the taxes were not due and owing, as we have attempted to show to the court, above the sale of said land was essential because the taxes were not paid.

Under the allegations of the bill and amended bill and under the proof, this record presents the situation to our minds not unique, but one in which property condemned for taxes, and there is no contention contrary to this, that this land was either sold to the individual or to the state, and one sale or the other must have been good, and since the appellant is now vested with the chain of title created by this non-payment of taxes, it seems to us that, until the appellee can show to the court, by some sort of evidence, something in connection with the sales and make this void, she should not be allowed to come into court, and, by the mere proof that there was a mistake made by the tax-collector in the preparation of the records concerning the alleged tax sale, and the appellee not show or prove that which she avers of the two sales was good in law and fact. That because of the mistake in the record as to the other attempted sale, especially in the light of the Law of 1878, which says: "All conveyances hereinafter provided shall vest in the purchaser or the state, as the case may be, a perfect title to the land sold for taxes and no such conveyance or list as between the original parties, or subsequent alienees, shall be invalidated, nor shall any defense offered against the title thus conveyed be good in any court in this state, except by proof that the taxes for which said land was sold had been paid or tendered to the proper officer before sale, or that the taxes were illegal in part, and that before the sale the tax payer tendered to the proper officers the amount of legal taxes due on said land."

The first Monday of March, 1880, was the time and J. R. E. Clark was the tax-collector. Under the pleadings, the taxes were due and owing upon the lands involved herein. All the necessary record steps going to make up the title secured by Delmas are regular and legal, the same is true of the record showing that the title went to the state of Mississippi. Here are two silent witnesses that show that the taxes were not paid.

The appellee by her pleadings and by the lack of evidence to the contrary show the same thing. Both tax sales, of course to the contrary show the same thing. Both tax sales, of course, could not be good because the land could not be sold both to the state and to Delmas, and Delmas or the state of Mississippi, one or the other, did get a tax title, but which of the two the land was sold to first, the attempted sale to the other would not be good.

Appellant is now vested with both of these, one or the other certainly vested in him title. As to which one we are not concerned, and it is not for us to say which title one or the other must stand.

White & Ford, for appellee.

It would be difficult to conceive, we submit, of a tax sale, more palpably void and unlawful than this. It is admitted and the record shows beyond question that the tax collector sold the same piece of land to an individual and to the state on the same date. We contend that both of these sales were void. Appellant contends that probably one of them was void, but inasmuch as he holds the beneficial interest of both of them the court cannot say that both were void, and therefore he has title. That is the gist of the argument.

We shall deal with the sale of the land to the state first. At the time these tax sales were made, the Laws of 1878 were in effect. This legislation appears at pages 23 to 83 of the published Laws of 1878. Section 40 appealing at page 45, provides: "That if upon offering all the land of any delinquent tax-payer, no person will bid for it, the whole amount of taxes and all costs, the tax collector shall strike off the same to the state." It is manifest that it was the duty of the tax collector first to get the bids of individuals, and if no one bid for it the amount of taxes, then the land should be struck off to the state. We insist, therefore, that the tax collector had no right to sell the land to the state except where there was no bidders at all, or where no one bid the amount of taxes. This proposition is so manifestly correct, we think that no citation of authority is necessary to support it. We know, as a matter of fact from what the record shows, that the tax-collector did receive a bid sufficient to pay the amount of the taxes on the land for the reason that he actually sold the land to Chas. H. Delmas to whom he executed the deed of conveyance shown at pages 14 to 16 of the record. Clearly therefore, having sold the land to an individual, he could not lawfully sell it thereafter to the state. Hence, we submit that the tax sale to the state was absolutely void and appellant can claim no title from that source.

We come now to the sale to the individual. The act of 1878 directed very clearly the manner in which the lands should be sold. Section 30 of the act provides: "on the first Monday of March if the taxes shall remain unpaid and no sufficient personal property can be found on which to levy the same, the collector shall proceed to sell the said land, or so much and such parts of the land of each delinquent tax-payer as will pay the amount of taxes due by him and all costs and charges to the highest bidder for cash. He shall offer first the smallest legal sub-division which is hereby declared to be forty acres, and if the first parcel so offered does not produce the amount due, then he shall add another similar sub-division and so on until the requisite amount is produced."

We contend that the tax...