Opinion
14571
November 24, 1937.
Before SHIPP, J., Hampton, February, 1937. Affirmed.
Action by E.W. Bailey against J.L. Medlock and another. Judgment for plaintiff, and defendants appeal.
Order of Judge Shipp follows:
This matter comes before me for the sole purpose of testing the validity of a tax title. The undisputed facts are that in May, 1922, the defendant. J.L. Medlock, gave a mortgage to one E.W. Bailey, on a house and lot in the Town of Estill. In 1923, an execution was placed in the hands of the sheriff of Hampton County for delinquent taxes on said property. On the first Monday in February, 1924, the sheriff of Hampton County duly advertised the said property for sale under said execution and, at the sale, the defendant, P. D. Peeples, was the purchaser of said property. No notice was given to the mortgagee, E.W. Bailey, by the sheriff prior to the sale. Verbal notice was given to him after the sale several times in an informal manner. On the 7th day of February, 1925, the sheriff executed a deed to the property to the purchaser, P.D. Peeples.
Under the law, as it existed at the time of the sale, and the time when the deed was delivered to the purchaser by the sheriff, written notice was required to be given to all mortgagees of property to be sold for taxes. It is admitted no such written notice was given; in my opinion this was fatal to the validity of the sale. Such statutes are enacted for a purpose and must be strictly followed else there would be no end of confusion. If the statute says written notice shall be given, that is what it means, and any other sort of notice will not avail. Since such notice was not given, the sale was a nullity, and I so hold.
The proviso to Section 522 of the Civil Code of 1922 evidently requires written notice to be given mortgagees at least 30 days prior to the delivery of the tax deed. Notwithstanding the strong argument of the attorney for defendant Peeples, or his heirs at law, who have been substituted for him, he having died, I am satisfied that at the time of the sale, in this case, and at the time of the delivery of the deed to P.D. Peeples, Section 522 of the Code of 1922 was of force and effect, and, therefore, the delivery of the deed without the 30 days' notice in writing renders the sale and delivery of the deed null and void.
It is therefore ordered that the tax sale and delivery of the tax deed as aforesaid be, and the same is hereby, declared void and of no effect.
Mr. Randolph Murdaugh, for appellant, P.D. Peeples.
Mr. George Warren, for respondent.
November 24, 1937. The opinion of the Court was delivered by
This appeal is from an order of the late lamented Judge Shipp, who held that the tax deed made and delivered by the sheriff of Hampton County to the defendant, Peeples, was null and void. The correctness, of the reasons given for such holding, is challenged by that defendant, the appellant here.
We think the Circuit Judge was right, and we approve and adopt his order. In 1912, the Legislature passed an Act (Act Feb. 17, 1912, 27 Stat. at Large, 699), requiring notice to be given any mortgagee of record in case of sale of real estate for taxes. This statute was not amendatory of Section 471 of the Civil Code of 1912 or of any Act, but was a separate piece of legislation. It was, however, later incorporated in Section 522 of the Civil Code of 1922 as a proviso thereof. The Legislature passed an Act in 1922 (32 Stat. at Large, 919), approved March 3d of that year, amending Section 471 of the Civil Code of 1912 by enlarging the time of redemption and providing who might redeem. The appellant contends that this Act repealed the proviso for notice contained in Section 522 of the Civil Code of 1922. We do not think so. No such intention was expressed in its title. Furthermore, there was no inconsistency between the proviso and the Act referred to. We are of the opinion that the Circuit Judge properly held that both were of force and effect at the time of the sale of the property in question and of the making and delivery of the tax deed by the sheriff. As to the contention of the appellant that, in any event, the requirements of the proviso were complied with by the sheriff, we think the conclusion is inescapable, upon proper analysis of the language used, that such notice was required to be given the mortgagee in writing, which it is conceded was not done.
The order appealed from, which will be reported, is affirmed.
MESSRS. JUSTICES BONHAM, BAKER and FISHBURNE concur.
MR. JUSTICE CARTER did not participate on account of illness.