Opinion
No. 27495.
February 18, 1929.
1. TAXATION. Law relating to actual possession curing defects in tax sale relates only to sale followed by possession therein prescribed; privity between purchaser at tax sale and person in possession is required for application of law relating to possession curing defects in sale; possession by purchaser from municipality of lands acquired at tax sale without ordinance therefor did not operate to cure defects in sale ( Hemingway's Code 1927, sections 2633, 7013).
Section 2633, Hemingway's 1927, Code (Laws of 1912, chapter 233), only operates to cure defects in a tax sale or proceedings affecting a tax sale when followed by the possession therein prescribed. In order that a person in possession may avail of the statute, there must be some privity between the purchaser at the tax sale and such person in possession, where such person in possession is not the buyer at the tax sale; and in order for such privity of relation there must be a valid sale or transfer of the purchaser's right at the tax sale.
2. TAXATION. Conveyance by municipality of lands acquired at tax sale without ordinance therefor is void ( Hemingway's Code 1927, section 7013).
Section 7013, Hemingway's Code 1927 (section 3429, Code of 1906), authorizes the mayor and board of aldermen of a municipality to dispose of lands acquired at a tax sale in any manner that may be prescribed by ordinance, and ordinances must be passed prescribing the terms and conditions under which said lands may be sold, and, if no such ordinance is enacted, a conveyance by the municipality to a third person is void and conveys no rights. The statute is for the public benefit, and must be followed by the municipal authorities.
APPEAL from chancery court of Stone county, HON. V.A. GRIFFITH, Chancellor.
Mize, Mize Thompson, for appellant.
The question to be decided in this case is: Does the Statute of Limitations providing that actual occupancy for three years after two years from the day of the sale of land, held under a conveyance by a tax collector, apply in this case? If it does, then the appellant is entitled to a judgment in this court. If it does not apply, then the case should be affirmed. Sec. 2633, Hem. Code 1927, provides that three years actual occupancy under a tax title shall bar any suit to recover such land or assail such title because of any defect in the sale of land for taxes, or in any precedent step to the sale.
In Pipes v. Farrar, 64 Miss. 514, 1 So. 740, it was held by this court that the statute applied as well to a purchaser from the state of tax lands that had been stricken off to the state as well as to a purchaser direct from the tax collector. Carlise v. Yoder, 69 Miss. 384, it was held that the statute applies although the assessment roll was not properly returned by the assessor. In Brougher v. Stone, 72 Miss. 647, it was held that the purchaser is protected when he has been in possession three years although the sale was made on the wrong day and under the abatement act. See, also, Butts v. Ricks, 82 Miss. 533 ; Hamner v. Yazoo Lumber Co., 100 Miss. 349, 56 So. 466; Littler v. Boddie, 104 Miss. 178, 61 So. 171; Smith v. Levenworth, 101 Miss. 238; Slawson v. Adams Machine Co., 117 Miss. 777.
Prior to 1912 the statute did not apply where the sale was absolutely void, but the court will note that since 1912 that part of the statute has been left off, and that now the statute applies even though the sale may have been void. In Hamner v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 466, this court held that this statute barring the original owner from suit after three years is a mere Statute of Limitations, and possession for the specified period based on a tax sale confers title upon the one claiming under such tax sale; and must be construed liberally to effect the end sought, and in that case the court used the following language, "the essential vital instrumentality, which gives the perfect, unassailable title, being not a sale for taxes, but possession under the deed. The possession of the land is the principal, and the tax deed merely the incident. In other words, the tax deed is the color of title; the possession confers the actual, real title or ownership. The court summarized its holdings with reference to this statute, and along with other things held that actual occupancy for three years after two years from the day of sale is an absolute bar to the original owner to set up any defense where the test of the right of occupancy is claimed under a tax conveyance. The court overruled the Kennedy case, the Eastland case, and the McLemore case which were in conflict with the opinion therein given. This is a thoroughly considered case. This statute as construed therein and as shown on its face is merely a Statute of Limitations and after three years from the expiration of the time to redeem, the owner simply cannot bring suit to oust the occupant under the possession. Now that is exactly what the appellee, in the instant case, undertook to do.
No one can dispute from the record that the appellant went into possession of this land by virtue of a tax sale from the tax collector to the town of McHenry and by a conveyance from the town of McHenry to the appellant. The bill of complaint alleged that that is the authority under which she went into possession. Therefore the Statute of Limitations began to run against the original owner immediately when appellant went into the actual occupancy of the land, and having remained there for more than three years the appellee is barred by the Statute of Limitations from bringing this suit. The fact that the conveyance from the town of McHenry was not made under a general ordinance is immaterial, because appellant is not relying upon a valid conveyance; if she were she would go out at once because the tax sale was not valid, but she is relying upon adverse possession under color of title, and this she is clearly entitled to do. The town of McHenry cannot complain because it never did hold a valid title, but it thought it had a valid title, and it undertook to convey its title there under the authority of these conveyances as color of title. The appellant went into possession and occupied it for more than three years. See Pipes v. Farrar, 67 Miss. 514, 1 So. 740.
As the section applies to a purchaser from the state of the tax lands that had been stricken off to the state, then certainly it will apply to a sale by the municipality of lands that were stricken off to it, and the two void conveyances, to-wit: The tax sale to the municipality; and the conveyance from the municipality to the appellant constitutes a color of title. Occupancy then for more than three years completes the bar of the Statute of Limitations. Ross, Backstrom Bickerstaff, for appellee.
Appellant, in her brief, frankly admits that both the alleged tax sale, and the conveyance by the municipality are void. It appears to us that by this admission appellant ends the whole controversy. Sec. 2632, Hem. Code 1927, provides that adverse possession for a period of ten years, "shall vest in every actual occupant or possessor of such land a full and complete title, saving to persons under disability of minority." Sec. 2633, Hem. Code 1927, which is the section relied on by appellant, provides that "actual occupancy for three years after two years from the day of sale of land held under a conveyance by a tax collector in pursuance of a sale for taxes shall bar any suit to recover such land or assail such title because of any defect in the sale of the land for taxes, or in any precedent step to the sale, saving," etc. The first section was clearly intended to and does vest title upon its provisions being fulfilled, but the second section referred to, sec. 2633, was clearly intended to and does cure any and all defects in the assessment and sale of the land but manifestly goes no further. It does not confer title by its terms, and to hold that it does confer title would be legislation by the courts. If there had ever been any doubt on this point it was set at rest by this court in Cochran v. Richberger, 70 Miss. 843, 12 So. 851, wherein this precise feature of the statute was reviewed.
Appellant relies on the Hammer case, 100 Miss. 349, 56 So. 466. We think that counsel has misconstrued the holding in the Hamner case, as the only point in that case was whether or not the statute applied to an absolutely void tax deed, and the court in that case held that it did apply and could decide nothing more for there was nothing more before the court. The statute simply means that the grantee at a tax sale, or his grantee under a valid conveyance from him, has his tax deed perfected in so far as the tax sale itself or any precedent step to the tax sale, is concerned, but nothing more, the dicta in the Hamner case notwithstanding. To illustrate: A buys a tract of land at tax sale and received the collector's deed therefor, and verbally gives the land to B, who enters into actual occupancy and so remains for three years. Can it be said that B acquires title thereby? Can it be said that B is in actual occupancy under a conveyance by a tax collector in pursuance of a sale for taxes? We submit that the very most that could be said of B's occupancy is that it is under a parol gift in pursuance of a sale by a tax collector. In the case at bar, the purported deed from the town of McHenry to the appellant was and is void, as is admitted by appellant. Can it be said that she held under a conveyance by a tax collector in pursuance of a sale for taxes any more than it could be said that B in the illustrated case so held? The statute, as it shows upon its face, was intended to protect the tax sale itself and not purported conveyances by the grantee in the tax deed, whether such grantee be immediate or remote.
Judge McLEAN, in the Hamner case, appears to have confused sec. 2633 of the 1927 Code with sec. 2632 thereof. He begins his discussion by premising that this court has uniformly held that the ten-year Statute of Limitations vests title, and argues therefrom that if the ten-year statute vests title, the three-year statute, being a mere Statute of Limitations, also vests title. He seems to have confused the wording of the two statutes, as but a glance at the opinion will reveal. Now, the ten-year statute found in sec. 2632 of the 1927 Code does vest title when its terms have been complied with, and the statute itself contains that precise term. Judge McLEAN said that the courts had uniformly so construed the statute, but a glance at the statute shows that it was so worded by the legislature — "shall vest . . . a full and complete title," and of course, the courts could place no other construction thereon without doing violence to the statute. The precise term is used in the ten-year statute, but it is singularly absent from the three-year statute.
Appellant likewise admits that the deed from the town of McHenry was void, and we submit to the court that this record shows that it is void. Under the statute, sec. 3429, Code of 1906, sec. 5989, Hem. Code 1917, and sec. 7013 of the 1927 Code, the town could only dispose of lands acquired by it at tax sales under an ordinance for that purpose. Appellant undertook to show and did show that this purported sale and deed were made under an order of the town council entered upon the minutes only, and thereby conclusively proved that the purported deed was absolutely void. The reason for requiring lands acquired by a municipality at tax sales to be sold and disposed of by a general ordinance and not by a special order or resolution of the town board is apparent. Lands thus acquired by a municipality are public lands and every citizen has an equal right along with every other citizen to acquire lands of this class without being discriminated against. The general ordinance points every persons interested to the way and means whereby this class of property may be acquired, and insures to all a fair deal in acquiring title to city forfeited tax lands. Were this not so the way would be opened up for all sorts of favoritism and discrimination, and the statute was enacted to prevent an occurrence of this form of evil. It does not lie within the power of the municipal authorities to abrogate this statute as was attempted to be done in the case at bar. Municipal authority must be strictly construed. Adams v. Greenville, 77 Miss. 881, 27 So. 990. The municipality of McHenry along with all other municipalities, had the power, under the statute, to convey its forfeited tax lands, but in order to convey, it must needs have strictly followed the way provided by statute for such conveyance. The statute was not only not strictly followed, but was entirely disregarded, and if such purported conveyance should now be held valid, the statute would be absolutely abrogated. It follows that the purported deed from the town of McHenry to appellant was void, and no conveyance at all; that no rights passed thereunder, and consequently the appellant was not a holder under a conveyance by a tax collector in pursuance of a sale for taxes, and could not claim the benefits of the three-year statute of actual occupancy.
Mrs. Jane Dickson was complainant in the court below, and filed a bill to cancel clouds on her title to said lots, situated in the town of McHenry, Miss. She deraigned title from the government to herself, and then alleged that Mrs. J.E. Byrd was asserting same claim to the said lots and collecting certain rents from the same, and prayed for a cancellation of the claims of the said Mrs Byrd and for an accounting for the rents and profits.
Mrs. Byrd answered the bill, setting up claim to a tax title, in which it was alleged that the lands in question had been sold for taxes in the year 1915, and the lands had been struck off to the town of McHenry, and, after the period of redemption had expired, she purchased the same from the town of McHenry.
The appellant admits that both the tax sale and the deed from the town of McHenry to Mrs. Byrd are void. The appellant, in her brief in this regard, says: "The fact that the conveyance from the town of McHenry was not made under a general ordinance is immaterial, because appellant is not relying upon a valid conveyance; if she were, she would go out at once, because the tax sale was not valid, but she is relying upon adverse possession under color of title, and this she is clearly entitled to do. The town of McHenry cannot complain, because it never did hold a valid title, but it thought it had a title, and undertook to convey its title there under the authority of these conveyances as color of title. The appellant went into possession and occupied it for more than three years."
The appellant, also in her brief, in the beginning of the argument, says: "The question to be decided in the case is: Does the Statute of Limitations, providing as to actual occupancy for three years after two years from the day of the sale of land held under a conveyance by a tax collector, apply in this case? If it does, then the appellant is entitled to a judgment in this court. If it does not apply, then the case should be affirmed."
The section relied upon by the appellant is section 2633 of Hemingway's Code of 1927, which section reads as follows:
"Actual occupation for three years, after two years from the day of sale of land held under a conveyance by a tax collector in pursuance of a sale for taxes shall bar any suit to recover such land or assail such title because of any defect in the sale of the land for taxes, or in any precedent step to the sale, saving to minors and persons of unsound mind the right to bring suit within such time, after the removal of their disabilities, and upon the same terms as is provided for the redemption of land by such persons." Laws 1912, chapter 233.
Section 7013 of Hemingway's Code of 1927 (section 3429, Code of 1906) provides:
"After the time for redemption has expired, the mayor and board of aldermen may take possession of and lease or sell any lands which it has acquired at tax sale to any person, in any manner that may be prescribed by ordinance."
The last cause of this section, "in any manner that may be prescribed by ordinance," is intended to require the town of McHenry to provide by ordinance the terms and conditions under which the municipal property acquired through tax sales may be conveyed. It is a provision for the public protection, intended to give all persons equal rights to acquire and purchase such property from the municipalities, and before the municipalities can sell such lands such ordinances must be duly passed and published in the manner prescribed by law for passing ordinances. After this is done, then every person is advised as to the terms and conditions under which said property can be purchased, and has the right to apply to the municipality to purchase same, and to have equal rights with any other person. It is mandatory upon a municipality to prescribe by ordinance the terms, conditions, and manner of making such sales, and it cannot dispose of municipal property acquired through tax sales without so doing.
In the case before us there was no ordinance complying with the statute, and the town undertook to sell the land here involved to the appellant, Mrs. Byrd, without compliance with the statute; consequently, the deed executed to Mrs. Byrd by the town was illegal and void. It conveyed no rights, and Mrs. Byrd stands in the same position as to the land as she would have stood or been placed in, had no such sale ever been made, and had she gone into possession of the land without any conveyance.
The section last quoted gives the mayor and board of aldermen a right to take possession of such lands after the time for redemption has expired. This right is a right that passes to its vendees, and without a conveyance no person except the municipal authorities is authorized to enter into possession. Section 2633 of Hemingway's Code of 1927 (section 3095, Code of 1906), above set out, says actual occupation after two years from the day of the sale of land held under a conveyance by a tax collector in pursuance of a sale for taxes shall bar any suit to recover such land or sell such title, etc.
It was held in Pipes v. Farrar, 64 Miss. 514, 1 So. 740, that this section applies to purchasers from the state of tax sales, the same as to a purchaser from a tax collector; in other words, as we understand that decision, where the state had acquired the right to go into possession and acquire perfect title by three years' adverse possession, it had the right to convey that right to its vendee to likewise enter into possession, and, if continued for three years or longer, the tax sale would be validated. In other words, we are of the opinion that the three-year occupation, after the two years for redemption has expired, makes the tax sale valid as to all defects named in the statute. We assume that the same rule applies to municipal tax sales, and that the purchaser from the municipality would have a right to enter into possession, and, if continued for three years, that it would validate the tax sale to the same extent as a sale under the state taxing proceedings; but we do not think that the statute extends any further, and it does not, in our opinion, have the effect of making valid a void sale from the municipality, or from a state, to the purchaser, or the attempted purchase by the person from the state, or from the municipality. In other words, the statute is designed to cure one link in a title; that is, the possession continued for three years under a conveyance makes the sale a valid and legal sale for all purposes, after the expiration of such time, but such possession does not curve a defect in a subsequent conveyance, and the Statute of Limitations applicable to the purchaser from the state or municipality subsequent to the tax title depends upon the ten-year Statute of Limitations, where the statute operates. Before the purchaser from the state or municipality can get the benefit of the three-year Statute of limitations, it must have a legal title from the municipality or the state, or from the purchaser at the tax sale. It takes this to set the statute in motion.
In the case before us, Mrs. Byrd stands precisely in the attitude of a person entering without right. Could, then, a trespasser or person without right get a perfect tax title by the mere going into possession without color of title? We think not. In the deed from the town of McHenry to Mrs. Byrd no title passed, and nothing would prevent the town asserting title to the land. There was no such privity of relation between Mrs. Byrd and the tax sale as will set the statute in motion, or make it operative in her favor. It is clear that, if an individual buys at a tax sale which happens to be void, and without any contractual relation or privity of contract, the third party going into the possession of land, such possession would not operate either for the benefit of the third person or for the original tax purchaser. The design of the statute is to encourage purchasers to buy at tax sales and protect the state in its revenues. It was never intended to confer power in a stranger to the title to get in possession of the land and acquire a title under the favored period of limitations prescribed by the act. It would be an unwarranted extension of the purpose of the statute to make it operate to cure all defects in the title of the occupant between the tax sale and the occupancy of the land. In other words, the town parted with nothing by its deed. The Statute of Limitations in civil cases does not run against the state, counties, or municipalities. Section 100 of the Constitution, and section 2634 of Hemingway's Code of 1927 (section 3096, Code of 1906).
In the case before us the town had never been in possession, and it could not prevail, under the statute of three years limitation. Its right to go into possession is not affected by its unauthorized conveyance to Mrs. Byrd. Mrs. Byrd would have no standing admittedly as against the town; can she, then, he in the more favored situation with reference to the original owner? The original owner is not affected by the conveyance to the town, because it is admittedly void, and the town has never had any possession of it. The original owner's rights as against the appellant are not affected, because the appellant is not entitled to invoke the three-year statute. The court below having found in accordance with these facts, judgment will be affirmed.
Affirmed.
Hamner v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 466, is controlling in favor of appellant's position in this case. The majority opinion destroys the principles laid down in that case, where the court said of this statute:
"We find this section in the chapter on `Limitations' in the Code of 1892, placed there by the legislature which enacted the statute and which adopted the Code. In addition, this statute shows upon its very forefront, and in all of its parts, that it is nothing more or less than a Statute of Limitations. It is as much a Statute of Limitations as the general one, which prescribes that actions concerning land shall be brought within ten years, or that an action for assault and battery shall be commenced within one year, and so on, as to the other various causes of action. There is nothing in this statute which distinguished it from any other Statute of Limitations. It simply provides a period of time within which actions may be brought to recover any lands sold for taxes; the right to successfully defend being confined to only those who have been in the possession of the land for the prescribed period; the essential vital instrumentality, which gives the perfect, unassailable title, being not a sale for taxes, but possession under the deed. The possession, or occupancy, of the land is the principal, and the tax deed merely the incident. In other words, the tax deed is the color of title; the possession confers the actual, real title or ownership.
"We find this illustrated in the various opinions of this court construing the ten-year statute relative to actions concerning lands. In Jones v. Brandon, 59 Miss. 585, this court says in the most emphatic language that the adverse possession confers title; possession of the land alone gives ownership, regardless of any claim under any paper title. This principle extends even to instances where the possessor claimed the land under a mistake. Metcalfe v. McCutchen, 60 Miss. 149. We accentuate that the possession is what confers ownership under our general Statute of Limitations; in fact, the paper title, or color of title, does not augment or enlarge the claim of ownership, the ownership being referred alone to the possession. Under this ten-year statute it is the adverse possession that confers title or ownership. The same is true as to the statute under consideration. The possession, based upon the claim that the land was purchased at a sale for taxes, confers title and ownership. When the real owner, one who has the true paper title, finds another in the possession of the land, and when this possessor is brought into court, the law says to him, `By what right do you claim this land?' He says, `By reason of adverse possession.' The law says, `Produce your title.' He replies, `I have no deed or other muniment of title.' Then the law rejoins, `You must establish possession for full ten years.' But, if he claims possession under a tax title, the only requirement is that he prove possession for three years, fortifying the possession by his tax deed."
In Littler v. Boddie, 104 Miss. 178, 61 So. 171, in construing the statute involved, the court held that it was immaterial that the only evidence of the tax sale was, not the certificate of the tax collector who made the sale, as required by law, but the certificate of the chancery clerk, or that there was no proof, other than the certificate of the tax collector that the lands were of the class liable for sale, or that the record did not show that any sale list was filed in the auditor's office, as required by law, or that no deed from the tax collector was produced, but only a certificate from the state land commissioner, showing a record in his office reciting that such a sale had taken place; that all such defects were cured by the actual occupancy of the land by the claimant, through the tax deed, for three years after two years from the date of sale.
In the Hammer case the tax sale was under the assessment roll of 1889, which assessment roll was made under the act of 1888, known as the Madison Act (Acts 1888, chapter 9). The court held that the Madison Act was void, because violative of the Constitution, and therefore the assessment and sale of the land involved in that case was without authority of law and void, but that, nevertheless, the claimant under the tax sale, who had actually occupied the land for three years after the two-year period for redemption had expired, had a perfect title under the statute.
The court emphasized in the Hamner case, by repeating time and again in its opinion, in varying language, clearly and forcibly, that the occupancy of the land by the claimant for three years after the two-year period for redemption had expired was the principal, vital thing that gave title to the occupant, and that the tax deed was merely an incident — mere color of title. The statute applies not only to the purchaser at the tax sale, but to his vendee. Pipes v. Farrar, 64 Miss. 514, 1 So. 740.
The majority opinion undertakes to show that the Hamner case is not decisive of this case in appellant's favor, because the conveyance from the town of McHenry to appellant, having been made in pursuance of a mere order of its mayor and board of aldermen, and not in pursuance of an ordinance, as required by statute, was void, and therefore did not constitute color of title in appellant under the tax sale. According to the reasoning of the majority opinion, if the town of McHenry had taken possession of, and actually occupied, the land, for three years after the two-year period for redemption had expired, it would have thereby acquired title under the statute, but that appellant got no such right by his conveyance from the town. It should be borne in mind that the town of McHenry had express authority under the statute to sell and convey its forfeited tax lands; that is not questioned. Therefore its conveyance to appellant was not without power. It was void alone because the power to convey was exercised in a manner not authorized by law.
The majority opinion concedes that, even though the power had been properly exercised, appellant would have gotten nothing by her conveyance from the town; the town having nothing to convey, because the tax sale at which it purchased was void. But it seems without doubt that under the statute the town got the right, after the two-year period for redemption had expired, to enter into the possession and occupation of the land, and mature its title under the statute, unless in the meantime appellee had asserted her title to the land. The record in this case shows that the town of McHenry did, as it was authorized by law, after the two-year period for redemption had expired, redeem the land from the state land commissioner, under a sale to the state for its state and county taxes. After so doing, the conveyance was made by the town to appellant. To say the least of it, by its void conveyance to appellant, the town of McHenry put appellant into the possession and occupation of the land; the conveyance had that effect, which is undenied; and, furthermore, it is undisputed that appellant's possession and occupation of the land for the three-year period provided by the statute was under and by virtue of that conveyance alone.
The town of McHenry is not a party to this cause; it is a matter of no concern to appellee whether or not, in making the conveyance to appellant, the town of McHenry pursued the statute authorizing such conveyances. To illustrate: A buys land at a void tax sale. After the two-year period for redemption has expired, A, instead of going into possession of the land and occupying it for three years, makes a verbal conveyance to B, which is void under the statute of frauds. B. takes possession thereunder and occupies the land for the three-year period. Certainly, if A had occupied the land for the required time, he would have acquired a good title as against the original owner, who permitted it to be forfeited for its taxes. Why should not B, who stands in A's shoes, get a good title by occupation for the required period, although his conveyance from A is void? It is entirely immaterial whether or not the conveyance from A to B is valid, because, if it had been valid, still B would have gotten nothing; A having nothing to convey because of the fact that the tax sale was void. A's claim is by virtue of the tax sale; B's claim is also by virtue of the tax sale, and his void conveyance from A. But those void conveyances furnish B color of title, under which he had occupied the land for the three-year period.
The majority opinion says that the three-year Statute of Limitations is only intended to cure the void tax sale, not a void conveyance from the purchaser at the tax sale to another person. And that is true. The statute does not cure the conveyance from the town of McHenry to appellant; it does not make that a valid conveyance. But that has nothing to do with the question. The only effort that conveyance had was to furnish appellant with color of title, under which she entered upon the occupation of the land, and continued such occupation for three years after the two-year period for redemption had expired.
As said in the Hamner case, under the statute only two things are essential: First, a void tax sale, and a claim under such tax sale, followed, second, by actual occupation of the land for three years after the two-year period for redemption has expired. That is this case.
SMITH C.J., joins in this dissent.