Opinion
No. 33062.
March 14, 1938. Suggestion of Error Overruled June 6, 1938.
1. TAXATION.
Under statutes governing description of personalty assessed for taxes, which authorize tax commission to prescribe form of assessment rolls and authorize personalty other than certain specific personalty, not including gasoline steam shovel, to be described as personalty "not otherwise enumerated," assessment of shovel under description of "machinery, tools, implements and equipment," in accordance with roll prescribed by the commission, was valid (Laws 1916, chapter 101, section 1; Code 1930, sections 3128, 3123).
2. TAXATION.
A statute providing that all taxes remaining unpaid after February 1 shall "immediately" be collected by the tax collector by distress and sale of personalty liable therefor means as soon as practicable under the circumstances (Code 1930, section 3238).
3. TAXATION.
Under statutes providing that taxes unpaid after February 1 shall immediately be collected, and that collector shall distrain and sell property for taxes reported uncollectible whenever he can find any property, collector had power to sell personalty in September for taxes which were unpaid the preceding February 1 (Code 1930, sections 3238, 3283).
4. TAXATION.
A gasoline steam shovel, which was an entire piece of machinery, valuable only when all of its parts were present, was properly sold for taxes as a unit, and tax sale was not void because portion of shovel could have been disconnected and sold for sufficient amount to cover taxes.
5. TAXATION.
Description of personalty in notice of tax sale as "one gasoline shovel," and description thereof in bill of sale executed by tax collector to purchaser at tax sale as "one gas shovel" were sufficiently specific, the word "gas" being commonly used for "gasoline."
6. TAXATION.
A statute giving owner of debts or property sold "under the last preceding sections" right of redemption from tax sale within six months applies to sales of personalty under fifth preceding statute separated from first statute by four statutes dealing with sale of property and debts for taxes, as well as to statute immediately preceding first statute and governing sale of debts for taxes (Code 1930, sections 3238-3243).
7. APPEAL AND ERROR.
In suit for gasoline steam shovel which was claimed by one defendant under tax sale, judgment denying relief was reversed because plaintiff was denied statutory right of redemption from tax sale, where attempted redemption was not pleaded in bill, but case was tried on theory that right of redemption was an issue, and defendants did not object to plaintiff's failure to plead attempted redemption (Code 1930, sections 3238-3243, and section 3264, as amended by Laws 1932, chapter 286).
APPEAL from the chancery court of Winston county; HON. T.P. GUYTON, Chancellor.
E.M. Livingston, of Louisville, for appellant.
Upon an examination of the assessment or personal property, a copy of page 113 of the assessment roll of Issaquena County attached as Exhibit "C" to the agreed statement of facts, we find that Section 3128 has not been complied with in that the tax assessor did not set down each item of personal property. He only listed totals showing machinery, etc., assessed to M.L. Gaines of $7000.00, machinery, etc., assessed to J.T. Gaines $3000.00. We submit that the tax assessor in order to make a legal assessment must set down each item indicating what it is, from the assessment in this case it is impossible to determine whether the assessment was even machinery, it could as well have been tools, implements and equipment insofar as the roll imparts information. The assessment roll is the only record and the only place the sheriff could go for information as to the property that might be liable for taxes, and the roll contained insufficient information for the sheriff to know or to ascertain what property might have been assessed to M.L. Gaines, J.T. Gaines or C.E. Gaines.
If the Gaines had been moving shovels in and out of Issaquena County, and we have no evidence to show that they have not been doing this, the sheriff could not have a machine taken in to the county after the first of January for the taxes due on another machine. The power given the tax collector to collect taxes by distress is on the theory of a lien existing against the identical piece of property he undertakes to sell, and the only way a lien can be created for taxes is by a legal and proper assessment being made against the specific property to be sold by the sheriff, therefore, for a lien to exist for taxes it is necessary that the tax assessor place on the rolls a description of the property he is assessing.
Carr v. Barton, 162 So. 172; U.S. v. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 14 A.L.R. 145; McQueen v. Bush, 76 Miss. 283, 24 So. 196; Bowers v. Andrews, 52 Miss. 596; Dodds v. Marks, 63 Miss. 443.
The sheriff could have made a legal and valid description of the property in his notice of sale, but we find in the notice, copy of which is attached to the agreed statement of facts, that the sheriff did not undertake to describe the property in his notice of sale.
It is my opinion that under the opinion of the Supreme Court in the case of Robertson v. Puffer Mfg. Co., 112 Miss. 890, 73 So. 804, that if the machine involved in this litigation was in Issaquena County on the date that fixed liability for taxation for the year of 1933 it should have been assessed to this appellant and appellant should have been properly notified of the assessment.
Section 3132, Code of 1930.
Section 3228, Code of 1930, provides that all taxes remaining unpaid after the first day of February shall immediately be collected by the tax collector by distress and sale of any personal property liable therefor and such sale shall take place at the courthouse door unless the property distrained be too cumbersome to be removed. This section fixes no definite date for the sale of personal property, but makes provisions that it shall be sold immediately after the first day of February. In this instance so far as the records show and the presumption is that the property was in the county on the time, but still the sheriff made no effort whatever to dispose of this property until the 19th day of September, 1934.
We are unable to determine from the assessment as made up by the tax assessor and the assessment roll itself who owned the property the tax collector undertook to sell, cannot determine whether it was claimed by J.T. Gaines or M.L. Gaines or both, but the record is sufficiently clear to warrant the argument that the property was claimed by J.T. Gaines and M.L. Gaines and claimed by them as partners. If this be true then the sheriff would have been authorized, under the law, to sell only a sufficient amount of the property to cover the taxes if a legal assessment had been made.
Strowd v. Southern Eng. Works, 100 Miss. 895, 57 So. 218.
It will be noted from the exhibits to the agreed statement of facts that appellant offered to pay the taxes if any were due, and offered to redeem the property from the tax sale immediately after receipt of information that its property had been sold. This tender was made under the provisions of Sections 3241, 3242, and 3243 of the Code of 1930. It is true that these sections have been repealed by Chapter 188 of the Laws of 1934, but the act of the Legislature repealing these sections did not take effect until after September 30, 1934, therefore, the provisions of the Code of 1930 were in full force and effect on the date the tax sale in this instance was made.
Section 3162 of the Code of 1930 has no application whatever in this case for the simple reason that no valid assessment was ever made against the property of this appellant, and no valid sale thereof was ever made.
The appellant had no opportunity whatever to pay the taxes on its property until after the sale had been made, and it then discovered by accident that its property had been sold for taxes and I respectfully submit that the property was taken without due process of law.
The process of distress for the collection of taxes is a summary remedy provided by statute which was in use in this country before the revolution and has always been held to constitute due process of law. It should be remembered that distress is not the enforcement of a lien. The property seized must be the property of the person taxed when it was seized and it need not be the property in respect to which the tax was assessed. Even the doctrine that a sale of personal property without change in possession is fraudulent in law will not justify the distraining of property no longer belonging to the person assessed, though still in his possession.
26 R.C.L. 340; Murry v. Hoboken, etc., Co., 18 How. 272, 15 L.Ed. 372; Springer v. U.S., 102 U.S. 586, 26 L.Ed. 253; Kelly v. Pittsburg, 104 U.S. 78, 26 L.Ed. 658; Palmer v. McMahon, 133 U.S. 660, 10 S.Ct. 324, 33 L.Ed. 772; King v. Mullins, 171 U.S. 404, 18 S.Ct. 925, 43 L.Ed. 214; Wulzen v. San Francisco County, 101 Cal. 15, 35 P. 353, 40 A.S.R. 17; Detroit v. Board of Assessors, 91 Mich. 78, 51 N.W. 787, 16 L.R.A. 59; Acme Harvesting Mach. Co. v. Hinkley, 23 S.D. 509, 122 N.W. 482, 21 Ann. Cas. 743; State v. Sponaugle, 45 W. Va. 415, 32 S.E. 283, 43 L.R.A. 727; L.R.A. 1915D 892; Daniels v. Nelson, 41 Vt. 161, 98 Am. Dec. 577.
An assessment roll which purports to assess a tax against personal property not listed therein, and which fails even to show that the taxpayer owns any personal property, is a nullity and will not justify the imposition of a personal property tax.
State v. Kidd, 28 So. 480; Savings, etc., Soc. v. San Francisco, 63 P. 665; San Francisco v. Flood, 2 P. 264.
I do not contend that either of the Gaines could be heard to complain of a void assessment in this instance because they evidently undertook to list property for assessment, but neither J.T. nor M.L. Gaines had any authority to act for this appellant. No relationship of principal and agent existed and they did not undertake to act for the appellant, but undertook to give in an assessment of the property as their property, when the truth about the matter is neither of the Gaines had any title whatever to the property in question. I think it very material to this law suit that it be shown that the machine here in question was released by the district court in Alabama for the bankruptcy proceeding of M.L. Gaines because that shows conclusively that the property was restored by the bankrupt court back to the appellant.
J.A. Covington, Jr, of Meridian, for appellee, Cobb Bros. Construction Company.
It is admitted that the machine company had no actual notice of the assessment and no notice except such as was imputed by law. It appears, however, from the agreed statement of facts that this gasoline shovel was moved into Issaquena County during the year 1932, where it remained until October 1934, when Cobb Bros. Construction Co., removed it to Winston County. The machine was therefore in Issaquena County on the first day of January 1933, and was subject to taxation.
Section 3121, Code of 1930, provides that all taxable property brought into the state or acquired or held before the first day of January shall be assessed and taxes thereon paid for the ensuing year. Section 3121 makes every lawful tax imposed a debt due by the owner whether properly assessed or not.
Section 3123 provides that all tangible personal property shall be assessed in the county in which same may be on the day the tax lien takes effect, provided it shall be kept in such county for the greater part of such current year and the list therefor may be rendered by an agent or by the owner.
Section 3120, Code of 1930.
Powell v. McKee, 81 Miss. 229, 32 So. 919, holds that personal property may be lawfully assessed to an unknown owner.
Colbert v. Board, 50 Miss. 143; Teche Lines v. Board, 142 So. 24.
We have no statute or decision requiring that a person taxed or a person owning personal property taxed be given actual notice of the assessment. Section 3126 provides that the board of supervisors shall proceed to equalize the tax rolls at the July meeting of each year, shall give notice by newspaper publication that the rolls are ready for inspection and examination at the August meeting following. Section 3164 provides for equalizing and correcting the rolls. Section 3165 provides for the hearing of objections to the rolls by taxpayers. Section 3166 provides that any person who is dissatisfied with his assessment may, at the August meeting, present objections in writing and that all persons who fail to file objections shall be concluded by the assessment and precluded from questioning its validity after final approval by the board.
Nickey v. State, 145 So. 630, 146 So. 859; George County Bridge Co. v. Catlett, 135 So. 217; North American Old Roman Catholic Diocese v. Havens, 144 So. 473.
It appearing that it makes no difference to whom the shovel was assessed, nor who the true owner was, nor what encumbrances were against it, it is immaterial that the Byers Machine Company did not know where the machine was located or that it was subject to taxation or that it had been assessed, and it is immaterial whether the machine company had actual notice of the assessment and sale or not. It is charged with such notice, as the law requires be given.
Robertson v. W.S. Nursery Co., 83 So. 307.
The appellees contend the property was sufficiently described in the assessment and that the law does not require a detailed and minute description of each article of personal property on the rolls.
Sections 3132, 3129, 3130, 3131, 3133, 3134, 3128, Code of 1930.
It must be pointed out here that the assessment roll itself constitutes the assessment. While the list to be furnished by the taxpayer is required by statute, this list does not constitute the assessment roll.
Vicksburg Bank v. Adams, 21 So. 401.
An assessment of personal property need not describe the items of property assessed in detail and an assessment in general terms of money and all other personal property is sufficient. Items of personal property need not be described in detail.
26 R.C.L. 314; Harrington v. Glidden, 94 A.S.R. 613, 47 L.Ed. 798; Spring Valley Water Co. v. San Francisco, 62 U.S.L.Ed. 790; Payne v. Speakman, 221 P. 9; Mammoth City v. Snot, 253 P. 680; State v. Jones, 41 S.W.2d 393; Security Savings Bank v. Carroll, 131 Iowa 605, 109 N.W. 212; Lamson Consolidated Store Ser. Co. v. Boston, 49 N.E. 630; In re: Morgan's Estate, 101 N.W. 127; Robbins v. Magoun, 70 N.W. 700; Noyes v. Hale, 137 Mass. 266; 61 C.J. 712; Savings v. San Francisco, 63 P. 665; State v. Kidd, 28 So. 480; San Francisco v. Flood, 2 P. 264; Commonwealth v. Riley, 72 S.W. 809; Sweetsir v. Chandler, 56 A. 584; Commonwealth v. Collins, 72 S.W. 819; Commonwealth v. Kentucky Dist., 136 S.W. 1032; Spring v. San Francisco, 62 L.Ed. 790; People v. Cosmopolitan Fire Ins. Co., 92 N.E. 922; City v. Rock, 89 A. 965; Lamson v. Con., 49 N.E. 630; In re Seaman, 113 N.W. 354; Ayer Lord Tie Co. v. Keown, 89 S.W. 116; 2 Desty, Taxation, 115, pages 611, 612; People v. Home Ins. Co., 29 Cal. 533; San Francisco v. Pennie, 93 Cal. 465, 29 P. 66; 25 Am. Eng. Encyc. Law 218.
We respectfully submit that the assessment of this shovel under its proper heading on the assessment roll was a sufficient identification of what was being assessed, and that the law required no further identification. As a practical proposition, M.L. Gaines, who was assessed with the property, knew that he had been assessed with it for he filled out the tax list presented by the assessor and deliberately caused himself to be assessed with the shovel. M.L. Gaines did not pay or offer to pay any taxes upon the property. As a practical proposition, the failure to particularly describe the shovel did not prejudice the Byers Machine Company, for the bill of complaint expressly states that the machine company did not know where the shovel was located anyway. The machine company does not contend that it made any effort to discover whether or not the machine had been assessed or whether or not it was taxable, and made no effort to pay the taxes when they became due.
The law requires the tax to be paid and the value of the property has nothing to do with the actual collection of the tax.
The appellees contend that collector's notice was entirely sufficient to support the sale.
Section 3238, Code of 1930; Moore v. Thomas, 48 So. 1025; North American Old Roman Catholic Diocese v. Havens, 144 So. 473; Fox v. Pearl River Lbr. Co., 31 So. 583; Warren County v. Miss. River Ferry Co., 154 So. 349; Adams v. Clarke, 31 So. 216; Yazoo Delta Investment Co. v. Suddoth, 12 So. 246; Anderson v. Ingersoll, 62 Miss. 73; Marathon Lbr. Co. v. State, 103 So. 798; Moore v. Duckhill, 151 Miss. 840.
It is respectfully submitted that there is no merit in the contention that the collector's notice and conveyance are void because they did not describe the machine so that it could be identified by the purchaser and others.
We have no statute nor decision setting out what character of conveyance the tax collector shall execute to a purchaser of personal property at a tax sale. As a matter of fact, we have no statute nor decision requiring that any conveyance at all be executed.
It is, of course, a fundamental proposition of law that the title to personal property passes at a sale of any kind by the payment of the purchase price and the delivery of the property. We have no law which changes this rule, with reference to personal property at a tax sale. It is admitted that the tax collector took possession of the property and after the sale, upon payment of the highest bid and that the property was then and there delivered to the purchaser. It is admitted that upon every succeeding sale of the particular shovel, a valuable consideration was paid, and the shovel was then and there delivered. It is apparent that the form and substance of the conveyances are immaterial and of no consequence as the conveyances were mere surplusage. At each sale of the property, including the tax sale, the title of the property passed by delivery, and ownership did not depend upon written conveyances at all. These so-called deeds did not add to nor take from a purchaser's title and ownership.
If a taxpayer is permitted to object and claim that a tax sale is void because the description in the advertisement or conveyance varies in some particular from that shown on the assessment roll, the resulting confusion would most certainly paralyze the tax enforcement machinery and defeat, by the very magnitude of clerical necessity, the practical operation of the law. The law has provided a reasonable and workable plan under which personal property taxes are assessed and collected, which has been in force from time immemorial.
Heidelberg Roberts, of Hattiesburg, for appellee, N.V. Carpenter.
The agreed statement of facts shows that the complainant, a non-resident of the State of Mississippi, merely held a retain-title contract on this machinery; that it contracted at one time to sell same to J.T. and M.L. Gaines; that the property during the entire taxable year was located in Issaquena County. Presumably, the complainant knew it was located in that county. It was taxable in that county and this is admitted by the complainant. The complainant did not make a return of said property for taxation, thereby violating the provisions of Section 3132 of the Mississippi Code of 1930. It knew that said property was taxable in Issaquena County and knew that it was its duty to make a return thereof if same should have been assessed to the complainant because it was charged with knowledge of the law. Not only did it fail to give in said property for taxes, but it also failed to pay the taxes on it after it was assessed. Mr. Covington has already pointed out that under Section 3120 of the Code of 1930 it is not necessary to the validity of an assessment of either real or personal property, that it be assessed to the true owner, and has called attention to the fact that this court, in the case of Powell v. McKee, 81 Miss. 229, 32 So. 919, held that an assessment of personal property to an unknown owner, is valid.
Aside from the statute already referred to and the decision of our court thereon, under our scheme it is not necessary where the owner of property is unknown to the tax assessor, or where the owner of the property is a non-resident of the state, that it be assessed to the owner. The tax assessor is given the authority under Section 3132, in such case, to assess same to the person having it in charge.
Aside from our statutes which make it clear that the assessment is against the thing assessed rather than the owner thereof, and a failure to assess property to the actual owner in no way invalidates the assessment, the general authority is that one in possession of personal property against which there is a retain-title contract such as is involved in this case, is liable for the taxes thereon as between the possessor and the holder of the retain-title contract. But the public authorities may treat the property as belonging indifferently to either the purchaser or the seller and proceed to assess and collect taxes accordingly.
Jordan v. Baggett, 140 S.E. 902.
The court will bear in mind that after all a retain-title contract is a mere security for a debt.
Employer's Fire Ins. Co. v. Greenville Bank Trust Co., 177 So. 534.
With reference to the argument made that the complainant was entitled under Section 4243, Code of 1930, to redeem this property from this tax sale, this court in the case of Stuard v. Southern Engine Boiler Wks., 100 Miss. 895, 57 So. 218, has held the contrary, and thereby forever set this question at rest.
The appellant exhibited an original bill of complaint against Cobb Brothers Construction Company and others to recover possession of a gasoline steam shovel, of which the construction company is in possession, claiming ownership thereof under a sale for taxes. The case was tried on bill, answer and agreed statement of facts, and the bill was dismissed.
The appellant's contentions are: (1) That the assessment under which the shovel was sold was void; (2) that the sale of the shovel by the tax collector was void, because (a) made after the authority of the collector to make the sale had expired, and (b) the published notice of the sale was defective; and (3) that the appellant offered within the time, and in the manner, provided by law to redeem the shovel from the tax sale but was not permitted so to do.
It appears from the agreed statement of facts that the Byers Machine Company, a nonresident corporation, sold the gasoline shovel in controversy, and now in the possession of Cobb Brothers Construction Company, to J.T. and M.L. Gaines; that in 1933, M.L. Gaines was assessed with "machinery, tools, implements and equipment — $7000.00" in Issaquena county, Miss., and failing to pay the taxes due thereon, the sheriff, in September, 1934, levied on and sold the gasoline shovel here in controversy, of which Gaines was then in possession in Issaquena county, to J.L. O'Neal, through whom the Cobb Brothers Construction Company now claims it. The sale of the shovel by appellant to the Gaines is evidenced by a written instrument from which it appears that the price agreed to be paid for the shovel was $14,200 of which $3,700 was paid, leaving a balance due of $10,500. Title to the shovel was reserved by the appellant until payment therefor was made, the purchaser agreeing "to assume and pay promptly when due all tax assessments or other probable charges which may be levied upon the property."
The alleged defect in the assessment is that it fails to list the gasoline shovel as a separate item of the property assessed, as required by section 3128, Code of 1930, which provides that "the assessor shall set down [on the assessment roll] each item of personal property liable to taxation." Section 3133 requires the State Tax Commission "to prescribe the form of the assessment rolls for assessing the real and personal property in each county," and the assessment roll here used conforms to the roll prescribed by the State Tax Commission, but the appellant says that the assessment roll violates section 3128 in that it does not comply with the requirement of that section hereinbefore set forth. Any difficulty that might here arise as to the meaning of the words "each item of personal property" is removed by the legislative understanding thereof evidenced by former statutes. Sections 1673, Rev. Code 1871; 478, Rev. Code 1880; 3754, Ann. Code 1892, and 4263, Code 1906, each contain the identical provision as to setting forth each item of personal property on the assessment roll hereinbefore quoted from section 3128, Code of 1930. Sections 1669, Rev. Code of 1871; 474, Rev. Code of 1880; 3751, Ann. Code 1892; 4260, Code 1906, amended by chapter 90, Laws of 1912, prescribed the form of the assessment roll, and after setting forth specifically a large number of items of personal property to be listed none of which included property of the character here in question, concluded with the general provision "amount of all property [sometimes, personal property] not otherwise enumerated" (sometimes, mentioned). If all personal property not otherwise enumerated is sufficient to cover an assessment of property of the character here in question, which the Legislature undoubtedly intended it so to be, then it necessarily follows that assessing it under the more specific description of "machinery, tools, implements and equipment" is sufficient. The description of the property was probably taken by the State Tax Commission from section 1, chapter 101, Laws of 1916, which provides the form then in use for the listing by the taxpayer of his property and assessment, one of the items of which is "value of all machinery, engines, boilers, tools, accessories, implements and appliances used or employed in any business or manufacturing establishment."
Section 3238, Code of 1930, provides that all taxes remaining unpaid after the 1st day of February shall immediately be collected by the tax collector, by distress and sale of any personal property liable therefor. The tax collector did not sell this shovel for the taxes due thereon until the following September. The word "immediately" in this connection means "as soon as practicable under the circumstances." Fairly v. Albritton, 121 Miss. 714, 83 So. 801; Gee v. Tucker, 127 Miss. 866, 90 So. 712; State v. Wyoming Manufacturing Co., 138 Miss. 249, 103 So. 11. It may be, therefore, that the tax collector was derelict in not selling this shovel for taxes due thereon at an earlier day, but it is clear from section 3283, Code of 1930, that he did not thereby lose the power to sell it when he did. That section provides that, even though the tax collector has reported the tax as uncollectible and been allowed credit therefor by the board of supervisors, "whenever he can find any property, real or personal, belonging to the defendant, he shall distrain and sell the same, on five days' notice," etc. The appellant also says that the sale of the shovel for taxes is void for the reason that it was not necessary to sell the entire shovel therefor, but a portion of it could have been disconnected therefrom and sold for a sufficient amount to cover the taxes due thereon. Exactly how this could have been done does not clearly appear, for the shovel was one entire piece of machinery, valuable only when all of its parts were present, consequently no error was committed in selling it as a whole.
The notice of the tax sale described the property to be sold as "one gasoline shovel," and the bill of sale executed by the tax collector to the purchaser of property at the sale described it as "one gas shovel." The appellant says that these descriptions were not specific enough, but we are unable to concur with it therein. The word "gas" for "gasoline" is in such common use as to make it here sufficient.
It appears from the statement of facts that within six months after the sale of this shovel for taxes the appellant offered in writing to both the chancery clerk and the tax collector to redeem it from the tax sale, in accordance with the provisions of section 3243, Code of 1930, and section 3264, as amended by Laws 1932, c. 286. This offer was refused.
Section 3238, Code of 1930, provides for the sale of personal property for taxes. Section 3239 deals further therewith. Sections 3240, 3241, and 3242 provide for the sale of debts due persons liable for taxes. Section 3243 provides: "The owner of the debts or property sold under the last preceding sections shall have six months from the day of sale in which to redeem his property, by complying with the conditions prescribed for the redemption of land sold for taxes; and the assignment of the debt or conveyance of the property by the collector shall be dealt with as provided for the conveyance of lands sold for taxes." The only answer the appellees make to the appellant's claim that he had the right under section 3243 to redeem this shovel from the sale thereof for taxes is that the section does not apply to sales of property made under section 3238, but only to the sections dealing with the sale of debts due a person assessed for taxes, citing in support thereof Stuard v. Southern Engine Boiler Works, 100 Miss. 895, 57 So. 218. The statutes there under consideration were sections of the Code of 1906; section 4315 of that Code provided, as does section 3238, Code of 1930, for the sale of personal property for taxes. The sections intervening between 4315 and 4341, Code of 1906, dealt with various features of the revenue law. Section 4341 provided for the sale of debts due a person liable for taxes, and section 4342 is identical with section 3243, Code of 1930. The court, in the case cited, held that the word "sections" in section 4342 was a clerical error and should be "section," and therefore the right of redemption therein granted applied only to the preceding section — 4341, the reason given for so holding being the number of sections dealing with other matters intervening between sections 4315 and 4341. In the Code of 1930 these sections were rearranged, and all of the sections that immediately precede section 3243 thereof, including section 3238, deal with the sale of property and debts for taxes, and the plural "sections" was retained in section 3243, consequently we must now hold that the redemption provided in section 3243 applies to sales made under section 3238. This rearrangement of the sections was probably intended to obviate the decision in Stuard v. Southern Engine Boiler Works, supra.
The appellant should have been awarded the possession of the shovel on payment to the proper parties of the money required for the redemption thereof from the tax sale. The attempted redemption of the shovel is not set forth in any of the allegations of the bill of complaint, and no relief predicated thereon is asked therein. The case, however, was evidently tried in the court below on the theory that the appellant's claimed right of redemption was an issue therein, otherwise the bill of complaint could, and probably would, have been amended, and no point thereon is here made by the appellees.
Reversed and remanded.