Opinion
No. 40103.
April 2, 1956.
1. Tax sales — merger of estates — failure of chancery clerk to give owner notice of expiration of time for redemption — did not affect validity of tax sale.
Where maker of trust deeds, prior to expiration of time for redemption from tax sale, gave deed in consideration of cancellation of notes secured by the deeds of trust, there was a merger of lesser estate in greater, the trust deed holder becoming the owner of the lands, and failure of chancery clerk to give such owner notice of expiration of time for redemption from tax sale did not affect validity of the sale. Sec. 3249, Code 1930; Secs. 9943, 9944, Code 1942.
2. Tax sales — two contiguous tracts — testimony of sheriff insufficient to show that more than one sale was made.
In action involving validity of tax sale, testimony of sheriff and tax collector, that he sold two contiguous tracts assessed to same owner in separate sales, was insufficient to show that more than one sale was made. Sec. 3249, Code 1942.
3. Appeal — decree of Trial Court — wrong legal principles — right results — did not warrant reversal.
Where decree of Trial Court proceeded in part upon erroneous view of applicable legal principles but reached right result, such misconception did not warrant a reversal.
Headnotes as revised by Lee, J.
APPEAL from the Chancery Court of Jackson County; H.P. HEIDELBERG, Chancellor.
Amy Burkett, Ocean Springs; John W. Bryan, Jr., Pascagoula, for appellant.
I. There was no merger of the interest of the Hibernia Bank and Trust Company as mortgagee with its interest as transferee of the mortgagor, and it was entitled to the lienor's notice as provided by the statutes. Lamar Life Ins. Co. v. Mente Co., 181 Miss. 479, 178 So. 89; Connecticut Gen. Life Ins. Co. v. Planters Trust Savings Bank, 182 Miss. 463, 181 So. 724; Cade v. Toler, 155 Miss. 606, 124 So. 793; Great Southern Land Co. v. Valley Securities Co., 162 Miss. 120, 137 So. 310; Secs. 3259-3261, Code 1930; Secs. 9943-9945, Code 1942; 37 Am. Jur., Secs. 1191, 1193 pp. 429-30; 59 C.J.S. 674.
II. None of the defendants have had sufficient possession of any of the lands here involved to bar, defeat or extinguish appellant's cause of action. A.W. Stevens Lbr. Co. v. Hughes (Miss.), 38 So. 769; Page v. O'Neal, 207 Miss. 350, 42 So.2d 391; Leavenworth v. Claughton, 197 Miss. 606, 19 So.2d 815; Heidelberg v. Duckworth, 206 Miss. 388, 40 So.2d 179; Thompson v. Reed, 199 Miss. 129, 23 So.2d 888; Leavenworth v. Reeves, 106 Miss. 722, 64 So. 660.
III. The Court erred in refusing to admit in evidence the aerial photograph of the area. Orr v. Columbus Greenville Ry. Co., 210 Miss. 63, 48 So.2d 630; Patton v. Nelson (Miss.), 51 So.2d 752; Gulf, Mobile Ohio RR. Co. v. Golden, 221 Miss. 253, 72 So.2d 446; Podolsky v. LaForge, 92 F.2d 954; New York S. W. Ry. Co. v. Moore, 105 Fed. 725, 45 C.C.A. 21; United States v. Romaine, 255 Fed. 253, 166 C.C.A. 423.
IV. The Court erred in refusing to grant appellant a continuance to permit the taking of testimony of witnesses who were ill. Griffith's Miss. Chancery Practice (2d ed.), Secs. 595-96.
Watts Colmer, Pascagoula; W.S. Benedict, New Orleans, Louisiana, for appellees.
I. Tax sale held on September 20, 1932, for delinquent taxes due for the year 1931 on the lands involved was valid. Jackson v. Nunn, 178 Miss. 665, 174 So. 578; Santa Cruz v. State, 223 Miss. 617, 78 So.2d 902; Jones v. Seward, 196 Miss. 446, 16 So.2d 619; Baker v. Cochran, 2 Miss. Dec. 96; Scott County v. Dubois, 158 Miss. 245, 130 So. 106; Caruthers v. Panola County, 205 Miss. 403, 38 So.2d 902; State v. Wilkinson, 197 Miss. 628, 20 So.2d 902; Leavenworth v. Claughton, 197 Miss. 606, 19 So.2d 815, 20 So.2d 821.
II. If for any reason title of the appellees based on the forfeited tax land patents is invalid, appellees acquired title by possession. Broadus v. Hickman, 220 Miss. 885, 50 So.2d 717; A.W. Stevens Lbr. Co. v. Hughes (Miss.), 38 So. 769; Page v. O'Neal, 207 Miss. 350, 42 So.2d 391.
III. The Court did not err in refusing to admit in evidence the aerial photograph. Gulf Research Development Co. v. Linder, 177 Miss. 123, 170 So. 646; Buchanan v. Hurdle, 209 Miss. 722, 48 So.2d 354; 20 Am. Jur. pp. 607, 609.
IV. The Court did not err in refusing to grant the appellant a continuance. Griffith's Miss. Chancery Practice (2d ed.), Secs. 560-61.
APPELLANT IN REPLY.
I. In reply to appellees' Point I. Santa Cruz v. State, 223 Miss. 617, 78 So.2d 902; Cade v. Toler, 155 Miss. 606, 124 So. 793; Connecticut Gen. Life Ins. Co. v. Planters Trust Savings Bank, 182 Miss. 463, 181 So. 724; Great Southern Land Co. v. Valley Securities Co., 162 Miss. 120, 137 So. 310; Bush v. Nance, 61 Miss. 237; Forrest County v. Thompson, 204 Miss. 628, 37 So.2d 787; Stevenson v. Reed, 90 Miss. 341, 43 So. 433; Neal v. Shepard, 157 Miss. 730, 128 So. 69; Love v. Barron, 197 Miss. 231, 20 So.2d 841; Sec. 3259, Code 1930; Sec. 9744, Code 1942; Griffith's Miss. Chancery Practice (2d ed.), Sec. 589.
II. In reply to appellees' Point II. Broadus v. Hickman, 220 Miss. 885, 50 So.2d 717.
III. In reply to appellees' Point III. 20 Am. Jur., Secs. 727, 729.
IV. In reply to appellees' Point IV. Griffith's Miss. Chancery Practice (2d ed.), Sec. 561.
(Hn 1) The record in this case shows that the appellant's claim of title is based on the same initial conveyances between Russell, Leavenworth and the Hibernia Bank Trust Company, and the lack of notice to a claimed lienor under Sections 9943-4, Code of 1942, as were relied on by the appellees in the case of Santa Cruz v. State of Mississippi, et al., 223 Miss. 617, 78 So.2d 900. The opinion in that case rejected such contention in these words: "When Leavenworth gave the deed to Hibernia Bank and Trust Company in consideration of the cancellation of the notes secured by the deeds of trust, there was a merger of the lesser estate in the greater. * * *" In other words, Hibernia Bank Trust Company, upon receipt of the quitclaim deed from Leavenworth, became the owner of the lands and was such owner prior to the expiration of the period of redemption. Thus, it was said, "* * * the failure to give such notice to the owner of the land does not affect the validity of the sale. Sections 3258 and 3262, Code of 1930."
The chancellor held that the tax sale to the State on September 20, 1932, was void because the lands were contiguous and were owned by the same party, but were assessed and sold in separate tracts, contrary to Section 3249, Code of 1930; that the sheriff and tax collector was competent to testify as to the manner of the sale; and that he had testified that the lands were sold in separate parcels. However, he held that, from the evidence, the defendants had acquired title by adverse possession under Section 717, Code of 1942.
(Hn 2) This case was tried prior to the decision, on March 28, 1955, in Santa Cruz v. State, supra. There is no substantial difference between the testimony of the sheriff and tax collector in that case and his testimony in this case. Such testimony was rejected in that case as being valueless and insufficient to show that more than one sale was made. Consequently, for the same reason, this testimony must be rejected in this case.
(Hn 3) From which it follows that the trial court reached the right result, although the decree proceeded, in part, upon an erroneous view of the applicable principles. However, such misconception does not warrant a reversal. Daniels v. Bush, 211 Miss. 1, 50 So.2d 563.
In view of the decisive nature of the questions hereinabove dealt with, it is unnecessary to pass on the sufficiency of the adverse possession, or the competency of the proffered aerial photographs, or the denial of a requested postponement of the case to offer additional testimony on the question of possession.
It therefore follows that the judgment of the trial court should be affirmed.
Affirmed.
Roberds, P.J., and Hall, Holmes and Ethridge, JJ., concur.