Opinion
No. 33225.
October 17, 1938.
1. TAXATION.
The board of supervisors had no authority to order land to be sold for delinquent taxes until after the third Monday in September, and hence sale made in June was void.
2. TAXATION.
Where the state obtained no title by buying land at tax sale, because tax sale was premature, a forfeited tax patent from the state conveyed no title.
3. TAXATION.
The statute requiring actions attacking validity of tax sales to the state to be brought within two years is not applicable to an owner who is in possession either in person or by tenant, and hence did not preclude such owner from attacking such sale in answer and cross-bill, in suit brought by holder of forfeited tax patent, more than two years after effective date of such statute (Laws 1934, chap. 196).
APPEAL from the chancery court of Webster county; HON. JAMES A. FINLEY, Chancellor.
Frank A. Critz, of West Point, for appellant.
The sale conducted by Mr. Suggs, the tax collector, was precisely the way set out in Section 3249 of the Mississippi Code of 1930.
Womack v. Central Lbr. Co., 94 So. 2.
The court below erred in holding said sale void on account of the manner of sale, it was not only not void, it was not voidable, it was exactly correct and legal.
The patent issued to the appellant by the state, Exhibit A to the amended bill, was issued June 16, 1936, four years and ten days after the sale by the tax collector of Webster County to the State. The time of redemption had passed, the patent was recorded before the patent issued to the appellee was issued; and so appellant's patent having priority will prevail over the patent later issued to the appellee.
Russell Inv. Corp. v. Russell, 178 So. 815.
A patent signed by the proper agents of the State with the seal of the state affixed thereto by the court is presumed to be legal in every respect. The patent issued to the appellant is signed by the proper authorities of the State, with the State seal affixed thereto.
Bledsoe v. Little, 4 How. 13; Carter v. Spencer, 4 How. 42; Harris v. McKissack, 34 Miss. 464; Sweat v. Corcoran, 37 Miss. 513; Jones County Land Co. v. Fox, 120 Miss. 798, 83 So. 341.
The appellee has wholly failed by his pleading or proof to overcome in the slightest this presumption, except that in his pleadings he attempts to attack appellant's patent collaterally, which under the law he cannot do, first, because the State is not a party to this suit; second, the appellee was not a party to the contract evidenced by the patent from the State to the appellant; and third, at the time the patent was issued to the appellant, the title to the land had ripened in the State, the time for redemption had passed, and the appellee had no more legal rights to this land than he had to the State Capitol. The appellee could attack the patent issued to the appellant only on the ground that the Land Commissioner did not have the authority under the law to issue the patent to the appellant or to any one else.
Gastrell v. Phillips, 64 Miss. 473, 1 So. 729; Huber v. Freret, 103 So. 3.
I earnestly insist that the court below should be reversed and that this court should render judgment.
On reversing errroneous judgment, Supreme Court will render proper judgment, if facts are undisputed.
Hairston v. Montgomery, 102 Miss. 364, 59 So. 793; Yazoo R.R. Co. v. Pope, 104 Miss. 329, 61 So. 450; Hines v. Cole, 123 Miss. 254, 85 So. 199.
The evidence presents no issue. We confess the evidence for the appellee as to the sale of the land for taxes, and further confess that said evidence shows conclusively that said sale was made precisely as provided by the State. Any evidence to be presented as to any alleged fraud by the appellant could not be offered by the appellee, being a collateral attack upon appellant's patent by the appellee, which is not permissible under our law, and such evidence would and should be excluded when offered.
J.E. Caradine, of West Point, for appellee.
The testimony of Sheriff Suggs shows that he offered the property first, forty acres, and second, by adding another forty and selling eighty acres, and then added another forty acres and offered 120 acres and then added another 40 acres and offered 160 acres, this would deny a purchaser, who might want to buy a certain forty acres but no more, and thereby defeat the object of the statute.
Stevenson v. Reed, 43 So. 433.
All of the cases that I have been able to find require the land to be sold in 40 acre tracts, and if the rule would prevail that you had to add 40 acres each time and sell 80 acres, 120 acres and 160 acres, as the case may be, you would not be offering the land in 40 acre tracts, as the statute requires. Section 3249 of the Code of 1930 specifically requires that 40 acres should be offered first, and if this does not produce the required amount, then the sheriff shall offer another similar subdivision, that is, another 40. The statute in former days used the words, "add another 40," but practically all the cases that I have examined say that this procedure must be followed, regardless of how difficult it is to divide the land into 40 acre tracts.
Talmadge v. Seeward, 124 So. 791; Herrington v. Moses, 14 So. 437.
The land was sold by an order of the board of supervisors on June 6, 1932, which order we contend was void.
Smith v. Hendrix, 178 So. 819; Griffith's Miss. Chancery Practice, page 790, sec. 678.
The plea of the statute of limitations is an affirmative plea and must be proven by the party setting it up, and there is no way to get the benefit of the statute of limitations without a plea to that effect.
Y. M.V.R.R. Co. v. Kirk, 58 So. 434; Gulfport Fertilizer Co. v. McMurphy, 114 Miss. 250, 75 So. 113, 82 Miss. 542.
The quarter section of land in question was illegally sold on June 6, 1932, for the unpaid taxes on the same for the year 1931 because the order of the board of supervisors of said Webster County, Mississippi, ordering the sale on June 6, 1932, was premature, unnecessary and void and contrary to Chapter 25 of the Laws of the Extraordinary Session of 1931 of the Legislature; because the land was not sold in the manner and form as required by law, I therefore earnestly insist that the court below was correct in his decision in dismissing the bill; because the bill on its face shows that said land was not sold at the time required by law. The order of the board of supervisors could not under any circumstances be cured, and there was really no sale of said land, for the reason that the order was void, and therefore the patent issued by the State to G.P. White was void and of no force and effect.
The land in question constitutes the homestead of appellee. He was the owner of it at all the times hereinafter mentioned. He has resided there for more than forty years, and still so resides. It became delinquent for the taxes assessed for the year 1931, and at the May Term, 1932, the board of supervisors of the county ordered the tax collector to sell all delinquent lands on the first Monday in June, 1932. This land was sold to the state on the latter day, and on June 16, 1936, the state by a forfeited tax land patent conveyed, or rather attempted to convey, it to appellant.
On October 24, 1936, appellant filed his bill against appellee, seeking to have appellant adjudged to be the owner of the land under said patent, and on October 5, 1937, he exhibited his amended and supplemental bill demanding a decree for rents. Appellee answered and averred that appellant had no title; that the tax sale to the state was invalid, and, particularly, that said sale was void for failure of the tax collector to comply with Section 3249, Code 1930.
It is not necessary to pursue the particular inquiry last mentioned, because under Smith v. Hendrix, Miss., 178 So. 819, the board had no authority to order a sale for delinquent taxes until after the third Monday in September, from which it follows, as held in that case, that a sale made in June, as is the case here, is of no legal effect and conveys no title; and since the state obtained no title, it had none to convey to appellant.
Appellant has insisted, however, that inasmuch as appellee did not raise this question about the invalidity of the tax sale until the filing of appellee's answer and crossbill, which was on October 5, 1937 — more than two years after the effective date of Chapter 196, Laws 1934 — appellee is now barred from any such defense by the terms of said statute.
As applied to the facts of this case, appellant's position on the stated point is not well taken. In Russell Inv. Corp. v. Russell, 182 So. 102, 108, we distinctly held that Chap. 196, Laws 1934, has no application to an owner in possession, whether in person or by tenant. It was necessary to give the statute that construction in order to bring it within constitutional limitations.
It follows that the result reached by the trial court in cancelling appellant's patent, and in dismissing his bills, was correct, and the decree will be affirmed.
Affirmed.