Wilkerson v. Harrington

• Decision Date: 15 October 1917
• Docket Number: 19551
• Citation: 76 So. 563,115 Miss. 637
• Court: Mississippi Supreme Court
• Parties: WILKERSON v. HARRINGTON ET AL

76 So. 563

115 Miss. 637

WILKERSON v. HARRINGTON ET AL

No. 19551

Supreme Court of Mississippi

October 15, 1917

Division B

APPEAL from the chancery court of Chickasaw county, HON A. J MCINTYRE, Chancellor.

Bill by S. A. Wilkerson against C. C. Harrington and others. From a decree, Wilkerson appeals and Harrington cross-appeals.

Appellant Wilkerson, exhibited a bill in chancery against appellees to cancel certain tax deeds executed by the sheriff of Chickasaw county to appellees and embracing four hundred and eighty acres of unimproved lands. The lands involved are described as the east half of the southeast quarter of section 22, the southwest quarter of section 26, the northeast quarter of section 27, and the northwest quarter of section 34, all in township 13, range 2 east. A plat or diagram of these lands will show that the lands in sections 22 and 27 join on the section line the full length of one forty, that the lands in sections 27 and 26 corner, and that the lands in section 34 are removed from the other lands the full distance of a quarter section. It is alleged in the bill of complaint that the sale was not conducted in accordance with the statute and was unlawful, in that the lands were not sold as one tract, and that the statute requiring lands constituting a separate tract and belonging to one owner to be offered in forty-acre subdivisions was not complied with. It is also contended that one, W. A. Harrington, personally appeared and bid off a part of the lands, and had the deeds taken in the name of the defendant, C. C. Harrington, and that this was unlawful, and rendered the deeds void. This latter contention is not insisted upon in the oral arguments and briefs of counsel, and need not be further noticed.

The answer denied that the lands were sold in an improper and unlawful manner, averred that each quarter section was sold by first offering the northeast quarter of the said quarter section, and that, upon a failure to get a bid thereon sufficient to realize the taxes due, then the adjoining forty was added, and so on until the entire quarter section was offered and sold. It is thus conceded in the answer that the whole tract of four hundred and eighty acres was not sold together as one tract, and the answer denies that the four hundred and eighty acres in fact constitutes one separate tract within the meaning of the statute. Each quarter section was sold by the sheriff as a separate tract, while the eighty acres in the east half of the southeast quarter of section 22 was likewise sold as a separate tract. There is evidence that a public road ran between the eighty acres in section 22 and the lands in section 27. The court upon hearing granted relief as to the three hundred and twenty acres in sections 26 and 27, but denied relief as to the one hundred and sixty acres in section 34. There is evidence that the complainant did not live in the county of Chickasaw, and did not know of the sale until after the expiration of two years; that the lands were unimproved or "wild" lands; that after the complainant learned of the sale he offered to do equity, by paying all taxes, interest, penalties, and notary and recording fees, but the defendant refused to accept complainant's offer. It is conceded that the taxes were not paid on any of the lands, and the only question is as to the legality of the method or manner of sale.

The complainant, Wilkerson, being dissatisfied with the decree denying relief as to the one hundred and sixty acres in section 34, prosecutes an appeal to this court; while the appellee, Harrington, prosecutes a cross-appeal, contending that the sheriff was justified in selling the lands in each quarter section separately. The record shows that the two forties in section 22 were struck off to and deeded to W. A. Harrington, while the other lands were conveyed to appellee, C. C. Harrington.

Decree affirmed.

S. A. Wilkinson and A. T. Stavall, for appellant.

We insist that this was "one tract" assessed to the "same owner," and that under section 4328 of the Code of 1906 the sheriff should have first offered forty acres for sale and if this tract did not sell for enough to pay the whole amount of taxes, then he should have added another forty acres, and then offered eighty acres, and if this did not sell for enough to pay the whole taxes, he should have added another forty acres and so on until he had procured enough to pay the whole taxes, or until he had sold the entire tract.

In Griffin v. Ellis, 63 Miss. 348, a suit was filed in this same county to have cancelled a tax deed. In that case the court said: "Notwithstanding that there has been, since the adoption of the Code of 1871, a statute declaring that no defense shall avail against a title, acquired in a sale for taxes, unless it be shown that the taxes for which the sale was made had been paid before the sale, the decisions of this court have been uniform in construing this declaration in connection with other provisions of law, as not preventing the owner from showing in defense a total departure from the provisions of law governing and directing the assessment and sale of the land for taxes." See 58 Miss. 138; 57 Miss 65; 53 Miss. 519, and 54 Miss. 58.

In the case of Nelson v. Abernathy, 74 Miss. 164, going up from the same county, the supreme court said: "As to the land, it is distinctly averred in the bill and admitted by the demurrer that the sheriff offered first one forty-acre tract and then another disconnected from it and so on, and then the whole of that tract and did not add the second forty-acre tract to the first and the third to the first two and so on, and that in offering each forty-acre tract, he failed entirely to designate or describe each such lot in any way whatever."

Continuing the court said: "We do not now hold, however, that the failure to do this would make the sale void, but we do hold that the failure to describe, or designate in any way what forty acres the sheriff was offering does render the sale void. One who bids at a tax sale is entitled to know for what, precisely, he is bidding and the owner is entitled to have his land so offered by proper designation that intending purchasers may be able to bid intelligently and that the part thus properly sold may bring as much as possible."

In this same case the court quotes from the Code of 1880, the language found in the Code of 1906 and referred to above and then say: "But this court in Griffin v. Ellis, 63 Miss. 348, in construing this very statute, held sale void, because the collector sold the whole body of land without first having offered it in sub-divisions, adding to each body an additional subdivision, until the whole was exposed."

"And it is clear that the provision in section 3813, Code of 1892, providing that no error in conducting the sale should invalidate it, does not have the effect to cure a total departure from the manner of selling prescribed by law."

In the case of Gregory v. Brogan, 74 Miss. 694, a suit was filed, asking for the confirmation of a tax title. There were several tracts and the different tracts were assessed separately as in this case. The proof showed that these parcels were contiguous and the court held that they constituted "one tract." Rufus E. Provine et al. v. James Thornton et al., 92 Miss. 395. Parcel--"A piece of land of indeterminated extent, but usually a large lot of ground. Within the meaning of a tax law, held to apply to a whole section of land." (Anderson's Dictionary of Law.)

It is elementary that courts in construing a statute should endeavor to ascertain the intention of the legislative branch of the government in passing a law. What did the legislature mean when in section 4328 of the Code, it used the words "one tract" and assessed as the property of the "same owner"? The purpose of the law was to prevent the tax collector from doing just what was done in this case. As suggested in the case of Gregory v. Brogan, supra, the mode of sale adopted by the tax collector, "made it inevitable that the whole tract would be sold for taxes upon it, no matter how much any one forty acres might have brought." The tax collector testified that he began with the lowest number of sections referred to in the bill, that is with the land in section 22. That was decidedly the least desirable land in the whole tract, and the proof shows that that tract sold for twenty dollars, whereas the most valuable quarter section in the tract, one hundred and sixty acres in section 34, sold for only seventeen dollars and forty-five cents.

The five hundred and sixty acres owned by the complainant being far out in the wilds of Chickasaw county, was in fact known as one tract, and was assessed to the same owner, and no sound reason can be offered as to why the legislature did not mean to protect this owner in the same manner as if this land had constituted a square.

We respectfully submit that the trial court erred in refusing to grant the relief prayed for as to the northwest fourth of section 34, and that the decree of the trial court so far as said quarter section should be reversed, and a decree rendered here in favor of the complainant.

I. E. Harrington, for appellee.

The only contention advanced by the appellant that is worthy of consideration is the proposition that the land was not sold as one tract. If all this land constituted one tract and the same was not offered in forty-acre tracts, described and specified, adding each time the same was offered, a definitely described forty acres, of course the same under our statute and decisions, was void. The only thing to be decided by the court in this case is whether the four hundred and eighty acres was one tract and if not then on the cross-appeal whether the...