Yazoo-Delta Mortgage Co. v. Lumbley

• Decision Date: 19 March 1928
• Docket Number: 26871
• Citation: 149 Miss. 864,116 So. 95
• Court: Mississippi Supreme Court
• Parties: YAZOO-DELTA MORTGAGE CO. et al. v. LUMBLEY. [*]

116 So. 95

149 Miss. 864

YAZOO-DELTA MORTGAGE CO. et al. v. LUMBLEY. ^[*]

No. 26871

Supreme Court of Mississippi

March 19, 1928

(En Banc.)

TAXATION. Tax collector may not sell delinquent lands to person bidding less than taxes and costs; tax deed undertaking to convey to purchaser bidding less than taxes and costs held void statute requiring tax collector to strike off delinquent lands to state if no one bids whole amount of taxes and costs held mandatory; violation of statute requiring tax collector on failure of any one to bid whole amount of taxes and costs to strike off land to state held not cured by other statutes (Hemingway's Code 1927, sections 6103, 8247, 8251).

Under section 6103, Hemingway's Code 1927 (Laws 1912, chapter 230), providing that "if, upon offering the land of any delinquent taxpayer, constituting one tract, no person will bid for it the whole amount of the taxes and all costs, the collector shall strike off the same to the state," the tax collector has no right to sell delinquent tax lands to a person bidding less than the taxes and costs, and a deed undertaking to convey such is void. The statute is mandatory in its terms, and the violation of such is not cured by section 8247, Hemingway's Code 1927 (chapter 199, Laws 1908), and section 8251, Hemingway's Code 1927 (section 4332, Code 1906).

ANDERSON J., and SMITH, C. J., dissenting.

HON. J L. WILLIAMS, Chancellor.

APPEAL from chancery court of Sharkey county, HON. J. L. WILLIAMS, Chancellor.

Suit by R. W. Lumbley against the Yazoo-Delta Mortgage Company and others to confirm a tax title. From a judgment for complainant, defendants appeal. Reversed and remanded.

Reversed and remanded.

Roberson, Yerger & Cook, for appellants.

We respectfully submit that by the statutes of this state and the uniform authorities in this country, a tax collector who sells lands for a less amount than all the taxes and costs, makes an invalid sale. It is uncontradicted from this record that the whole amount of the taxes and costs due at the time of the sale of those lands was seventy-three dollars and fifty-four cents. It is uncontradicted that the tax collector sold the lands in controversy for sixty-four dollars and thirteen cents. We respectfully submit that this sale is absolutely void. Section 6103, Hemingway's Code 1927, provides in part: "If, upon offering the land of any delinquent taxpayer constituting one tract, no person will bid for it the whole amount of taxes and all costs, the collector shall strike off the same to the state. The authorities in other states of this Union are unanimous in holding that a tax sale made under such circumstances is void. "Under the statutory provisions generally in force, the sale must be for the amount due. A sale under the statute for less than the amount due is invalid, unless the difference is so slight as to be immaterial." Page & Jones, Taxation by Assessment, 1859. We also quote 37 Cyc. 1338, as follows: "It is always the intention that land offered at tax sale shall bring not less than the whole amount of taxes due on it, with the lawful costs and charges, and in some states this is positively required by law, so that a sale made for a less amount is void." Our court expressly approved the proposition which we contend for in Havard v. Day, 62 Miss. 748. It is the public policy of this state that the state and its various subdivisions shall collect all the taxes due by purchase by individuals or the state shall become the owner of the land. The statute uses the mandatory word "shall." It does not grant to the collector any discretion whatever. It is so manifest to our mind that this tax sale is void that we shall not further press the point.

Clements & Wright, for appellee.

There is nothing in this record to show what the tax on this property was. The valuation of the property does not appear in the record. The copy of the Deer Creek Pilot is not shown to be the official list of the tax collector; the tax collector does not testify in this case. An advertisement of the delinquent tax list is not essential to a valid sale. Sec. 8247, Hemingway's Code, 1927. There is nothing in this record to show that the figures in the Deer Creek Pilot are correct or were furnished by the tax collector. But appellant says it is shown on the back of the deed. There is no law requiring the tax collector to put anything on the back of the deed; therefore no figures that may appear, especially without some proof of their correctness, or as to who put them on, could affect, legally, the consideration expressed in the face of the deed.

The presumption is, that the officer did his duty, and the deed is made prima-facie evidence of a valid assessment and sale. Sec. 1715, Hemingway's Code 1927. But aside from all this, conceding for the sake of the argument, that the tax collector sold for a less amount than due, under our system this section of the code is merely directory, for the reason that the tax collector under section 8296, Hemingway's Code 1927, together with his bond, is charged with all the tax and damages that he should have collected, therefore it makes no difference what amount he collects, in his settlement he pays the correct amount. It doesn't avoid the sale.

All the decisions cited by appellant on this point turn on either local statutory question, or are general propositions where there are no specific statutes involved. The case relied on by appellant, Havard v. Day, 62 Miss. 748, taken in the light of subsequent action of the legislature, shows that the policy of the legislature is, that where there is a valid assessment and the tax has not been paid or legally tendered, a sale should not be upset. This is clearly shown by the present laws. When the above decision was rendered under the Code of 1871, the law then in force had no such provisions as now, "and, if any, part of the taxes for which the land was sold was illegal or not chargeable on it, but part was chargeable, that shall not affect the sale nor invalidate the conveyance, unless it appear that before sale the amount legally chargeable on the land was paid or tendered to the tax collector." So it is evident that had the law at the time the above decision was rendered been as before quoted, there would have been no such decision as Havard v. Day. Our court holds that a party attacking a deed must bring themselves within the exceptions, for that is the only defense to the deed. Reed v. Heard, 97 Miss. 743; Jones Co. Land Co. v. Fox, 120 Miss. 812; Brown v. Clark, 138 Miss. 501.

ETHRIDGE, J. ANDERSON, J. dissenting. SMITH, C. J., concurs in this dissent.

OPINION

ETHRIDGE, J.

Lumbley, the appellee, purchased certain real estate at a tax sale, and, after two years for the redemption thereof had expired, brought suit to confirm the tax title, alleging in his bill that on the 1st day of February, 1922, and prior thereto, the Planters' Bank of Clarksdale, Miss., was the owner in fee simple of certain lands described, and that such lands were assessed for taxes for the year 1922 on the land rolls of Sharkey county, Miss., and that P. L. Abel became the owner of said lands on the 5th day of December, 1922, and continued and was the owner of such lands on the 2d day of April, 1923. He further averred that the taxes on said lands had never been paid for the year 1922, and that same being in default, after due advertisement, the said lands were sold by the sheriff and tax collector of Sharkey county on the 2d day of April, 1923, and that the complainant, R. W. Lumbley, became the best bidder therefor, and the purchaser thereof, at and for the sum of sixty-four dollars and thirteen cents. It was further averred that the said lands were not assessed to any other person; that the two-year period of redemption allowed under tax sales, expired on the 3d day of April, 1925; that after the expiration of the said redemption period, the deed to such lands was delivered to the complainant, and that title to such was vested in him; that he had the right to have this title confirmed in him, and the court had jurisdiction for that purpose; that he prayed for appellant to be made party defendant with certain other parties, "then and there to plead, answer, or demur" to the bill, and for a decree to quiet and confirm the title to said land in him against all persons claiming to own such lands.

The appellants filed an answer in which they denied that the real estate described in the bill was assessed for taxes on the land rolls of Sharkey county for the year 1922; denied that any taxes assessed against said property for the year 1922 were never paid; denied that they were sold in accordance with law; denied that Lumbley purchased said land at the said tax sale on the 2d day of April, 1923, or at any other time; denied that complainant had any title by virtue of any alleged tax sale as referred to in his bill of complaint; and denied that Exhibit A to the bill of complaint was a deed executed pursuant to any tax sale.

It was agreed by and between the parties to this cause that there were no lienholders in interest in the case, or involved in any way; that the title of the defendants to this suit is that title vested in them by virtue of a certain deed executed by the Planters' Bank of Clarksdale to P. L. Abel, trustee, which deed is recorded in Book 32, at page 59, of the Land Deed Records of Sharkey county, Miss., and which deed is, by consent of the parties, offered in evidence. It was further agreed that the assessment roll of 1922, under which this sale was made, or had, shows that the land in question in this case was assessed to Mrs. E. B. Dye.

Counsel for the appellee offered, in evidence, the deed dated April 2, 1923, from H. J. Wright, tax collector,...