March 12, 1945.
If court can harmonize statutes adopted at the same time, court must do so.
Repeal of statute by implication is not favored.
The Legislature is presumed to know of the statute it is enacting and of the subject matter affected.
Unless it is unavoidable and clearly manifest, court must not impute inadvertence to Legislature, especially where such inadvertence would have to be inferred in the face of repeated enactments of the same statute.
The repetition of enactment of a statute is, of itself, evidence against inadvertence on part of Legislature in making the enactment.
Where statute allowing sheriff $1 for each conveyance of land sold to individuals for taxes, and statute directing chancery clerk to execute a deed to purchaser instead of sheriff as theretofore were enacted at same time, but thereafter a new law was enacted to change compensation of sheriff but which retained provision allowing him $1 for each conveyance, inadvertence in allowing compensation to sheriff could not be ascribed to the Legislature, especially in view of fact that another reenacted provision enlarged rather than diminished the effect of sheriff's lists of lands sold for taxes (Code 1942, secs. 3936, 9958).
Where Legislature in revamping system of tax sales made many substantial alterations and readjustments and required sheriff to give tax purchaser a receipt instead of formerly required execution of deed, and directed chancery clerk to execute deed to the purchaser instead of sheriff as theretofore, but retained provision allowing sheriff $1 for each conveyance of land sold to individuals for taxes, such fact indicated intention of Legislature to leave untouched the compensation to the sheriff for equal labor, tending to the same effect, though involved in different form (Code 1942, secs. 3936, 9958).
Where a sale for taxes is void and passes no title, there can be no redemption.
Under statute providing that tax collector's list of tax sales confers on purchaser an inchoate right in land defeasible only by redemption, which list, when recorded, is notice to all persons in same manner as are deeds when filed for record, and requiring tax collector to deliver to purchaser at tax sale a receipt, the tax collector's performance of duty results in transfer of definite right or interest in land and constitutes a "conveyance" within statute allowing tax collector $1 for each conveyance of land sold to individuals for taxes (Code 1942, sec. 3936(D), subd. (d), as amended by Laws 1944, chap. 179).
Statute allowing tax collector $1 for each conveyance of land sold to individuals for taxes was not impliedly repealed by statute adopted at same time directing chancery clerk to execute deed to purchaser instead of tax collector as theretofore, especially in view of fact that statute allowing tax collector $1 fee had been subsequently re-enacted (Code 1942, secs. 3936, 9958).
APPEAL from the circuit court of Tallahatchie county, HON. JNO. M. KUYKENDALL, Judge.
Henry Barbour, of Yazoo City, for appellant.
The lower court erred by giving judgment for defendant and in failing to give plaintiff (appellant) judgment for his demand based on 407 excessive charges of $1 each collected by defendant sheriff from plaintiff on purchases at tax sales of land as fees "for each conveyance of land sold to individuals for taxes" because the law requiring sheriffs to make conveyances of land to individuals for taxes had been repealed and the duty put on chancery clerks to make such deeds and the sheriff made no conveyances.
Code of 1930, Sec. 3273.
Plaintiff's suit filed in 1943 for recovery of illegal collections by the sheriff in 1937, 1938 and 1939 was not barred by the statute of limitations, the $195.00 accruing in 1940 and 1941 not being affected.
Prince v. Prince, 190 Miss. 309, 200 So. 126; Rather v. Moore, 179 Miss. 78, 173 So. 664; Blodgett v. Pearl River County, 134 Miss. 816, 98 So. 227; DeSoto County v. Wood, 150 Miss. 432, 116 So. 738; Washington v. Soria, 73 Miss. 665, 19 So. 485.
Appellee's claim that the sheriff's signed and certified lists of tax sales constituted conveyances under Section 3256, Code of 1930, is refuted by the holdings of this court that without a deed from the chancery clerk under seal and in conformity with the statute the purchaser has no rights enforcible in the courts.
Roebuck v. Bailey, 176 Miss. 234, 166 So. 358; Hatchett v. Thompson, 174 Miss. 502, 165 So. 110; Dunbar v. Interior Lumber Co., 102 Miss. 623, 59 So. 852; Johnson v. Langston, 189 Miss. 649, 198 So. 321; Opinions of the Attorney General 1931-1933, p. 109.
Caldwell Caldwell and James A. Blount, all of Charleston, for appellee.
The appellee was entitled to a fee of $1 for executing a conveyance at a tax sale to the appellant, who was the purchaser of the land. The word "conveyance" means more than a deed and is broader than the word "deed." The tax receipt issued by the tax collector to a purchaser of lands at a tax sale showing the purchase price, date of sale, and description of the land purchased is a conveyance and the fee allowed the tax collector for executing a conveyance to the purchaser has not been repealed but is still on the statute books.
Roebuck v. Bailey, 176 Miss. 234, 166 So. 358; Holmes County v. Ellis, 195 Miss. 124, 13 So.2d 635; Crawley v. Johnson, 21 F. 492; Code of 1930, Secs. 1789, par. (d), 3254, 3256; 18 C.J.S. 90 et seq.; 13 C.J. 902; 1 Restatement of the Law of Property 30, note.
The appellant is barred by the statute of limitations from recovering from the appellee on the tax sales made in 1937, 1938, and 1939 as he bases his action on an open account and does not make the purchaser's receipts issued to him exhibits to his declaration.
Code of 1930, Secs. 526-527, 2299.
Caldwell Caldwell and James A. Blount, all of Cleveland, for appellee, on suggestion of error.
Appellee respectfully submits that the court erred in holding that Section 3273 of the Code of 1930 (Section 9958 of the Code of 1942) repealed by implication Section 1789 of the Code of 1930, paragraph (d), Section 3936 of the Code of 1942).
When the provisions of a statute are carried forward and embodied in a codification or revision, in the same words, or which are substantially the same and not different in meaning, the later provisions will be considered as a continuance of the old law.
The doctrine of repeal by implication is not favored in law and will not be resorted to except where the repugnance or opposition is too clear and plain to be reconciled.
The thing the Legislature sought to accomplish by its enactment is of prime importance in arriving at the construction of the awkward language in the amendatory act.
The courts in construing a statute must seek the real intention of the Legislature and then adopt such interpretation as will give effect thereto, though the interpretation may be beyond or within the mere letter of the statute, and the true meaning of a statute, when ascertained, will be enforced by the courts, even to the extent of correcting language used therein.
Any construction of the statute that would read it out of the Code would not be justified. It cannot be said that there is anything in the 1930 Code in which it might be held that Section 3273 repeals Section 1789 of the same Code. These sections were enacted into law by the same Code at the same time and so also was Section 3254. The majority opinion seems to overlook Section 3254. Certainly this section is as much alive as the other sections. These sections have to do with the acts of the officers. The law continued to carry an allowance to the tax collector for doing the things required in making a tax sale, step by step. The $1 allowance to the tax collector continued to stand as before. while the acts the tax collector performed insofar as his taking the money of the purchaser and issuing some evidence of his having made the sale and received the money was slightly changed. Instead of issuing a deed and filing it with the clerk to be delivered to the purchaser after the period of redemption had expired, he then and there gave him the instrument required under Section 3254 of the Code of 1930. The lawmakers evidently had it in mind that subsection (d) of Section 1789, allowing the tax collector a $1 fee, covers this step in the duties performed by a tax collector even though the majority opinion may say that it was not properly a conveyance. "The letter killeth but the spirit giveth life," is aptly said and is applicable here. Again, if we apply the law to this case as decided in the case of Earhart v. State, supra, the majority opinion would strike subsection (d) of Section 1789 from the Code or render it senseless and uncertain so as to be unenforceable, but to construe the law so as to apply it to the paper which shall be the evidence of the purchase of the land by said purchaser as provided by Section 3254, most assuredly reaches the legislative intent and purpose and leaves both in the law as a harmonious whole insofar as the fee for the act is concerned.
Gully v. Jackson International Co., 165 Miss. 103, 145 So. 905; Wray v. Kelly, 98 Miss. 172, 53 So. 492; Gandy v. Public Service Corporation, supra; Roseberry v. Norsworthy, 135 Miss. 845, 100 So. 514; Kennington v. Hemingway, 101 Miss. 259, 57 So. 809, 39 L.R.A. (N.S.) 541, Ann. Cas. 1914B, 392; Byrd v. Byrd, 193 Miss. 249, 8 So.2d 510; Hunt v. Hunt, 172 Miss. 732, 161 So. 119; Peets v. Martin, 135 Miss. 720, 101 So. 78; Walters v. Walters, 180 Miss. 268, 177 So. 507; Choctaw County v. Tennison, 161 Miss. 66, 134 So. 900; Quitman County v. Turner, 196 Miss. 746, 18 So.2d 122; State Board of Education v. Mobile O.R. Co., 72 Miss. 236, 16 So. 489; Robertson v. Texas Oil Co., 141 Miss. 356, 106 So. 449; Smith v. Chickasaw County, 156 Miss. 171, 125 So. 96; Western Union Telegraph Co. v. Katherine Lenroot of Childs Bureau, 89 L.Ed. 289; State v. Shushan (La.), 19 So.2d 185; Weller v. Von Hoven, 42 La. Ann. 600, 7 So. 702; United States v. Rabbit, 1 Black. 55, 17 L.Ed. 94; Sycamore Preserve Works v. Chicago N.W.R. Co., 366 Ill. 11, 7 N.E.2d 740, 111 A.L.R. 1133; Piedmont N.R. Co. v. Interstate Commerce Commission, 286 U.S. 299, 76 L.Ed. 1115, 1123; Code of 1930, Sec. 1789, Code of 1942, Sec. 3936, amended by Ch. 179, Laws of 1944; Code of 1930, Secs. 3254, 3273; 4 Hughes, Grounds and Rudiments of the Law 1104; 59 C.J. 928, 929, 973, Sec. 533; 2 Sutherland, Statutory Construction (2 Ed.), Sec. 500.
Certainly Sections 1789 and 3254 of the Code of 1930 must mean that the tax collector is to receive a fee of $1 for executing the receipt to the purchaser as the law requires. Before the adoption of the Code of 1930 the tax collector was allowed $1 for executing a deed and under the present law he is now allowed $1 for executing a receipt to the purchaser. Is there any more reason to believe that the Legislature intended that the word "conveyance" in the statute meant "deed" than it is to believe the Legislature also now intends that the word "conveyance" means the purchaser's receipt? We hope in the present case the court will remember, "That which the letter would here destroy is the validity of the section itself, as well as the purpose, plan and consistency of the entire scheme. That to which its spirit would give life is the soundness and integrity of the legislative purpose, and its consistency, uniformity and equality. There is therefore presented not a dilema but a path."
It seems to us upon reading the brief of counsel for the appellant on suggestion of error that he is trying to divert the mind of the court to the question of whether the tax purchaser could support his title on anything but the deed from the clerk and not on the question before the court, which is, does a reasonable construction of the statute in question, which is Section 1789, Code of 1930, allow the fee of $1 to the sheriff and tax collector. The issue before the court is what can the statute, which has remained on the book, despite successive amendments of the law, and which has been re-enacted as the law by Chapter 179, Laws of 1944, mean but that the tax collector should be allowed the $1 for the act performed under Section 3254, Code of 1930. Under Section 3254 the sheriff is required to execute a receipt to the purchaser and under Section 3256 file the list with the clerk. When he does this we find that a conveyance has been made. What is the meaning of the word "conveyance" if it is not an instrument that is the evidence of title or that vests the title? The tax collector does not execute a deed to the state when it is the purchaser at a tax sale. He does execute a conveyance of some kind as the title to land vests through a conveyance of some kind. It is not necessary that the receipt issued by the tax collector pass the absolute title to make it a conveyance of title.
A departmental ruling cannot make a statute mean one thing when on its face it plainly means another.
Henry Barbour, of Yazoo City, for appellants, on suggestion of error.
The dissenting opinion charges that the majority opinion is defective because it fails to refer to Section 3254, Code of 1930, and falls into the obvious error of claiming that the sheriff's receipt is an instrument of writing by which the title to the land described is affected by creating an interest therein and alienating that interest to the purchaser. Regardless of what theory of construction may be adopted to explain why the Legislature left in the Code Section 1789 (d) allowing the sheriff $1 for each conveyance to the purchaser, we are all agreed that to earn this $1 the sheriff must make a conveyance. Further, it is elementary English that a conveyance is any instrument which places the title with the right of possession to land in the purchaser. The sheriff's certified list of tax sales to the state is a conveyance, because it passes to the state the title to the various lands described when the chancery clerk's records show no redemptions by the owner within the redemption period. As pointed out in the dissenting opinion, a certificate of purchase by the land office, although in the form of a receipt, amounts to a conveyance because it puts the title to the land described in the purchaser with immediate right of possession.
The dissenting opinion fails to comment on the effect of Section 3273, Code of 1930, requiring the purchaser to receive his conveyance from the clerk, which was passed along with Sections 3254 and 3256 in the same Code.
If the sheriff's acts under Sections 3254 and 3256 really alienated the interest of the owner to the purchaser the court should have held in Hatchett v. Thompson, 174 Miss. 502, 165 So. 110; Dunbar v. Interior Lumber Co., 102 Miss. 623, 59 So. 852; and Johnson v. Langston, 189 Miss. 649, 198 So. 321, that the purchaser already had title, and therefore that the Legislature meant nothing by Section 3273, requiring conveyances by the clerk and relieving the sheriff of the burden of preparing, executing and delivering deeds of conveyance to each purchaser.
Is it not easier for the court to discard Section 1789 (d), Code of 1930, appearing in the chapter on costs, and which was manifestly not in the legislative mind when they reconstructed the whole scheme of conveying lands of delinquent tax payers to purchasers, than to discard Section 3273 which completely provided for such conveyances? If the acts of the sheriff under Section 3254 and 3256 convey the land to the purchaser, there is no further need of Section 3273 and it was a dead letter law when it was placed in the statutes.
These questions were fairly put up to this Court in Hatchett v. Thompson and the other cases mentioned in the majority opinion, with the result that they determined that the Legislature meant that the conveyances were to be made under Section 3273 by the clerk and not under Section 3256 by the sheriff. The best that could be said for Section 3256 would be that it conflicted with Section 3273 and the court could not reconcile the two. This fortunately was not necessary for the following reasons:
The real intention of the Legislature not to make the sheriff's acts under Section 3256 conveyances is plain from the section as a whole, because it says that failure of the sheriff to transmit such a list to the clerk shall not affect the title. That completely answers the dissenting opinion that a conveyance is any instrument by which title to any real estate may be "affected" in law or in equity.
The intention of the Legislature in Section 3254 is easily found in the language of the act which, though it requires a sheriff to issue the receipt, defines the legal effect of the receipt as "evidence of the purchase." "Evidence of purchase" cannot be stretched to mean "conveyance." Analogous to this is the bid of a purchaser at a sale by the trustee under a trust deed, which bid is written by the trustee on the notice under which he sells. This memorandum of the trustee is evidence of the purchase but is certainly not a conveyance. The conveyance is the trustee's deed, just as the tax conveyance is the clerk's deed.
Obviously the whole theory of the appellee is fallacious because the sheriff's list, regardless of expressions in the statutes, never in any way effects or affects a conveyance to the purchaser. A conveyance is an instrument which passes title to property. How can it be seriously charged that the Legislature regarded a sheriff's list of lands sold to individuals for taxes as a conveyance of each of the properties sold, when the Legislature knew that most of the lands would be redeemed? This controversy arose because the taxpayers redeeming their property refused to pay the $1 collected by the sheriff from Seward and were allowed by the chancery clerk to redeem without paying the same, which forced the latter to sue the sheriff for a refund. These redeemed properties involved in this suit were certainly not conveyed by the sheriff's lists. Why should the taxpayers be required to pay $1 for each conveyance, when their property was not conveyed? Therefore, it matters not whether the Legislature meant to leave Section 1789 (d) in the statutes or whether it is repealed by implication. The sheriff simply does not make any conveyance to the individual purchaser at tax sales and, therefore, cannot collect the $1 formerly received by him for making such conveyances.
The matter is just as simple as shown in our first brief wherein we quoted the construction handed down by the Attorney General quoted under Section 3936, Code of 1942, as follows: "Sheriff is no longer entitled to the fee provided in sub-section d (d) since he does not make the conveyance of real estate. Ops. Atty. Gen. 1931-33, p. 109."
Appellee has filed a suggestion of error based on the construction of statutes showing great research and learning, which has evidently impressed the court because we are required to answer it. Most of the cases cited are inapplicable. We have taken the position above that no elaborate discussion of the principles of repeals by implication and provisions in pari materia is necessary to demonstrate that the sheriff is no longer entitled to the fee provided because he does not make the conveyance of real estate. Under every rule of construction cited by appellee and some not cited by him, Section 1789 (d) is repealed by implication, and whether repealed or not, by its very terms the sheriff is not entitled to the $1 claimed for conveyances to purchasers.
Prior to the enactment of said Sections 3254, 3256 and 3273, the sheriff was required within a limited time to execute deeds to all individual purchasers at tax sales of land and lodge them with the chancery clerk for delivery to the taxpayer upon redemption, otherwise to the purchaser after expiration of the period of redemption. Complete compliance with the laws requiring said execution of deeds was obligatory, otherwise the purchaser acquired no title by his purchase at the tax sale. Many titles were adjudged void because of the failure of the sheriff to execute properly and deliver his deeds to the clerk within the required period. The purchaser acquired title under the legally executed sheriff's deeds. For executing these deeds the sheriff was allowed $1 for each deed, whether the taxpayer redeemed or not. It cannot be contended that the $1 allowed for conveyances referred to anything except the aforesaid sheriff's deeds, or that the sheriff could collect the $1 for each conveyance without the valid execution of the said deeds. This cumbersome scheme, with its futile waste of $1 paid by redemptionists for deeds not delivered to purchasers, was superseded by said Section 3273 passed in 1930, under which the sheriff was expressly relieved of the duty to make deeds.
The same Legislature amended the statutes governing the passing of title to the state under the certified list of the sheriff of all tax sales to the state, by requiring the sheriff also to certify and file with the chancery clerk a list of sales to individuals, with this essential difference, the state continues to acquire title under the properly certified list of lands sold it by the sheriff, and under Mayson v. Banks, 59 Miss. 447, the mere sale to the state passes no title unless said list of sale is properly certified and filed by the sheriff. The certified list of sales to the state operates as a conveyance only of such lands as the later report of the clerk shows unredeemed.
The individual purchaser does not derive a title at all from the list of sales the sheriff is required to make up and file with the clerk, because it is expressly enacted as part of the statute that failure of the sheriff to transmit such list shall not render the title void. If the Legislature had intended the sheriff's receipt and tax sale to operate as a conveyance it would not have inserted the clause that failure to transmit the list would not affect the title and would have enacted no further legislation on the subject. Without Section 3273 and without the express saving clause aforesaid in Section 3256 that section would have passed title to the purchaser just as it passed title to the state. But the Legislature did enact Section 3273 requiring deeds from the clerk, which statute would have been wholly nugatory and surplusage if the sheriff's certified list lodged with the clerk operates as a conveyance to the purchaser. Even without the clause that failure to transmit the list would not render the title void, the requirement of Section 3273 that the purchaser obtain his deed from the chancery clerk would have conclusively evidenced the legislative intent that Section 3256 should not operate as a conveyance. The Legislature, however, removed all doubt of its intention that only the clerk's deed should operate as a conveyance by expressly enacting the said clause that failure of the sheriff to transmit the list would not render the title void.
There is no reason to assume that the Legislature of 1930, which passed Sections 3254, 3256 and 3273 of the Code of 1930, meant to change the meaning placed by them on the word "conveyances" in their former acts. That it meant deeds is certain and when the Legislature relieved the sheriff of the burden of executing these conveyances and added that duty to the chancery clerk it unquestionably repealed the fee statute authorizing $1 for each conveyance to purchasers, either by implied repeal or by rendering the statute so ineffectual that no claim could be made under it.
Compare Secs. 8250, 8251, Hemingway's Code of 1927, Secs. 6965, 6966, Code of 1917, with Sec. 3273, Code of 1930; Sec. 1951, Hemingway's Code of 1927, Sec. 1882, Code of 1917, with Sec. 1789, Code of 1930; Sec. 8252, Hemingway's Code of 1927, Sec. 6967, Code of 1917, with Sec. 3256, Code of 1930.
Section 8250, Code of 1927, required the tax collector to execute conveyances to individuals purchasing land at tax sales, and Section 8251, Code of 1927, specified the form of conveyance that "shall" be used by the tax collector, which conveyance was a deed conveying the lands assessed for the year to the purchaser at tax sale. Section 3273 specifies this identical form of conveyance to be executed by the chancery clerk. Unquestionably the fee scale of Section 1951, Code of 1927, which is the same as Section 1789 (a-f), provided for payment to the tax collector of $1 for the conveyance he was required under said Section 8251, Code of 1927, to execute. By Section 3273, Code of 1930, this duty to make the conveyances formerly required of the tax collector by Section 8251 was transferred to the chancery clerk. Thereafter the conveyances formerly required of the tax collector under said Section 8251 were made by the clerk and none by the tax collector. With the charge necessarily went the tax collector's right to pay for a service he no longer rendered. Section 3256 placed no additional duties on the tax collector. Section 8252, Hemingway's Code of 1927, required the sheriff to make up a list of lands sold to individuals and file it with the chancery clerk. No provision was ever made for any fees for making up this list.
It is elementary that though the law may allow fees for various services, officers cannot collect them unless they can certify they performed the service. No additional work has been added to the tax collector by the change and he is well paid for all his services. He always has been required to file a list of tax sales to individuals; therefore, Section 3256 added no burden.
ON SUGGESTION OF ERROR.
This case is before us now on a suggestion of error. The former opinion reversing the trial court may be found in, Miss., 20 So.2d 89. Appellee has filed this suggestion of error on the ground that our conclusion heretofore reached was erroneous.
The facts of the case have to do with fees charged by the sheriff and tax collector of Tallahatchie County in connection with various tax sales of land for default in payment of taxes from April 5, 1939, up to and including the first Monday in January, 1940. Appellee Dogan was sheriff and tax collector, and as such made the sales of four hundred and seven pieces of land in the period named to appellant Seward, whom appellee required to pay him the sum of $1 for each such sale, in addition to the other statutory fees. Appellant claimed that this charge of $1 was unauthorized by law and sued appellee in the Cirsuit Court of Tallahatchie County to recover the amount so paid, with interest, or a total of $484.01. The appellant contended that the Legislature had repealed the statute authorizing this allowance to the sheriff and tax collector by the enactment of a statute directing the chancery clerk to execute a deed to the purchaser instead of the sheriff as theretofore. In other words, does Section 3273, Code 1930, now Section 9958, Code of 1942, repeal, by implication, Section 1789 (d), Code of 1930, p. 889, now Section 3936, Code of 1942? These two statutes were both adopted in the Code of 1930 by the adoption of that Code so that they were enacted at the same time and in the same Code.
The trial court entered a judgment for the sheriff and tax collector, appellee here, and the plaintiff Seward, appellant here, appealed to this Court, which, in its former opinion, supra, reversed the trial court and rendered judgment here for appellant. The issue to be decided now is, did we commit error by reversing the case and rendering judgment for appellant? Additional briefs have been requested and have been filed. We have carefully considered them, and have also made a most painstaking re-examination of the whole record, and all pertinent statutes throwing light on the issue involved. At the outset, we shall group together certain applicable statutes in order to observe their relation to each other in the overall scheme adopted by the Legislature in providing the procedure in tax sales and purchases of land.
Section 3256, Code of 1930, now Section 9936, Code of 1942, directs, referring to the list of land tax sales required to be made by the sheriff and tax collector and filed with the chancery clerk, that: "The said lists shall vest in the state or the individual purchaser thereof a perfect title to the land sold for taxes, but without the right of possession and subject to the right of redemption; but a failure to transmit or record a list, or a defective list, shall not affect or render the title void."
Section 3254, Code of 1930 (for which Chapter 188, Laws 1934, Section 33, was later substituted but to the same effect), now Section 9933, Code of 1942, provides: "The tax collector shall upon payment of the purchase price deliver to the purchaser of lands sold for taxes a receipt showing the amount paid, a description of the land sold, the amount of taxes due thereon, and the date of sale, and such receipt signed by the tax collector shall be evidence of the purchase of said land by said purchaser."
Section 3273, Code of 1930, now Section 9958, Code of 1942, provides: "When the period of redemption has expired the chancery clerk shall, on demand, execute deeds of conveyance to individuals purchasing lands at tax sales." (Italics ours.)
The form of the deed is: "Be it known, that . . . tax collector . . . did, . . . according to law, sell the following land, . . .; and the same not having been redeemed, I therefore sell and convey said land." The statute then provides further that: "such conveyance shall vest in the purchaser a perfect title with the immediate right of possession."
Section 1789, Code of 1930, now Section 3936, Code of 1942, as amended by Laws 1944, Chap. 179, Section 1 (D), Subsection (d), provides: "For each conveyance of lands sold to individuals for taxes. . . . $1.00." This appears in the fee bills of sheriffs and tax collectors. The caption to the Laws of 1944 describes it as an act "to change the compensation of sheriffs and tax collectors," but while changes in the compensation of this officer are made, otherwise, this statute was re-enacted unchanged as to the allowance of $1 to sheriffs and tax collectors for each conveyance of lands sold to individuals.
Section 3256, Code of 1930, now Section 9936, Code of 1942, it will be noted, provides that said lists shall vest in the state or the individual a perfect title to lands sold for taxes but without the right of possession and subject to the right of redemption, while Section 3273, Code of 1930, Section 9958, Code of 1942, provides, in reference to the deed of the clerk, that such conveyance shall vest in the purchaser a perfect title with the immediate right of possession, the right of redemption not having been exercised, of course, and the time therefor having expired. The difference is that the tax collector's list vests in the purchaser a perfect title, without the right of possession, subject to redemption, and the clerk's deed vests in the purchaser a perfect title with the right of immediate possession, redemption having lapsed. It will be further noted that the instrument to be executed by the clerk is to be issued only on demand and is termed a "deed of conveyance," while the language in the fee bill of the sheriff is "for each conveyance of lands sold to individuals."
The present statute, Section 9936, Code of 1942, contains this additional provision with reference to the lists, distinctly giving the lists a characteristic pertinent to deeds: "The list hereinabove provided shall, when filed with the clerk be notice to all persons in the same manner as are deeds when filed for record."
The first inquiry is as to whether a conveyance and a deed of conveyance are synonymous, or is a conveyance necessarily limited to deeds of conveyance; and if the list is, under any contemplation of the law, classed a conveyance. In other words, while all deeds are conveyances, is the converse true, that all conveyances are deeds? If the courts can harmonize the statutes now being considered which were adopted at the same time, it is the duty of the Court to do so. Repeal by implication is not favored by the law. The Legislature is presumed to know of the statutes it is enacting and of the subject matter affected. It is argued that this allowance was retained in the fee bill by inadvertence of the Legislature. Unless it is unavoidable and clearly manifest, courts must not impute inadvertence to the Legislature, and especially in cases where such inadvertence would have to be inferred in the face of repeated enactments of the same statute. The repetition of the enactment of a statute is of itself evidence against inadvertence on the part of the Legislature, and hence since these statutes were enacted together in the Codes of 1930 and 1942, and a new statute was enacted in Chap. 179, Laws of 1944, to change the compensation of sheriffs and tax collectors, which, however, did not change but retained the statute allowing him $1 for each such conveyance under discussion, inadvertence cannot be ascribed to the Legislature, in our judgment. Especially, inadvertence cannot be ascribed to the Legislature when Section 9936, Code of 1942, re-enacted Section 3256, Code of 1930, and enlarged rather than diminished the effect of the lists of lands sold for taxes by providing it should have the same effect of notice as would a deed filed for record. At the same time, the Legislature retained its word "conveyance" in the tax collector's fee bill, Section 3936, Chap. 7, Title 17, Vol. 3, Code of 1942, "for each conveyance of lands sold to individuals." The statute does not circumscribe the tax collector's compensation by use of the phrase "deed of conveyance" because simultaneously it had already provided that the chancery clerk execute at the proper time "deed of conveyance." The Legislature, when directing that the chancery clerk should execute such deed, did not provide for him any extra or peculiar compensation for issuing this deed of conveyance by him. The only compensation for conveyance of lands at tax sales being the provision of $1 to the tax collector for each conveyance to the purchaser at a tax sale.
Section 8251, Hemingway's 1927 Code, required the sheriff to execute and deliver the tax deed subject to the right of redemption, and the requirements of the deed were the same as required in the present clerk's deed except the tax collector and not the clerk executed it. Section 8252, Hemingway's 1927 Code, provided: "The collector shall also make a list of lands sold to individuals, in the same manner as required of lands, sold to the state, which he shall file with the clerk of the chancery court, who shall record the same in a book to be kept for that purpose; . . ." This statute did not contain the language of Section 3256, Code of 1930, that said lists shall vest in the state or individual purchaser thereof a perfect title to the lands sold for taxes, but without the right of possession and subject to the right of redemption, nor did it contain, of course, the provisions of the Code of 1942 that such lists when filed should have the same effect of notice as a deed filed for record. So that it appears the Legislature in the Codes of 1930 and 1942, gave to the tax collector's lists attributes of conveyances which it did not have in the Hemingway's 1927 Code.
In addition, the statute, Section 3254, Code of 1930, Section 9933, Code of 1942, was not in the Hemingway's 1927 Code, and appeared for the first time in the Code of 1930. This statute required a new and extra duty of the tax collector, which statute evidently was meant to substitute the giving of a receipt by the sheriff and tax collector to the tax purchaser for the formerly required execution of the deed to the purchaser by the tax collector. At any rate, the requiring of this receipt described above did not appreciably lessen the labor of the tax collector. In Roebuck v. Bailey et al., 176 Miss. 234, 166 So. 358, this Court held that although the list may not have been filed, this receipt was sufficient evidence of the sale to vest title in the purchaser, subject to the right of redemption.
In revamping the system of tax sales, the Legislature made many substantial and material alterations and readjustments, but in spite of numerous changes in the statutes on procedure, and in spite of changes otherwise as to compensation for sheriffs and tax collectors, the Legislature clung to the allowance of this fee of $1 to the tax collector for each conveyance to individual purchasers of lands at tax sales. This indicates care and intention on the part of the Legislature to leave untouched this compensation to the tax collector for equal labor, tending to the same effect, though involved in different form.
Rights in land may be affected and effected without being accompanied by possession. The right of redemption, for instance, is vendible and descendible; the right of a remainderman in land does not carry present possession, but nevertheless is subject to conveyance. The same is true of an expectancy of an inheritance in lands which may be conveyed without the right of possession. Even the possibility of a reverter may be transferred or conveyed by will duly probated. Ricks et al. v. Merchants Nat'l Bank Trust Company et al., 191 Miss. 323, 2 So.2d 344. Our Court has held in the case of Pool v. Ellis et al., 64 Miss. 555, 1 So. 725, 727, "until the lapse of the time in which the owner is permitted to redeem, the title of the purchaser is inchoate, and does not carry with it the right to the possession of the land as against the owner."
In Murphy v. Seward et ux., 145 Miss. 713, 110 So. 790, Seward, the landowner, permitted his land to be sold for taxes and after the tax sale and before the period of redemption had expired, Seward cut the timber on the land. The Court held him liable to the party in whom the title matured for the value of the timber so cut, the land not having been redeemed from the tax sale.
The word "redemption" connotes a change of interest in the thing to be redeemed, and a change of interest connotes a conveyance by some written instrument or by operation of law. It has been said that a law of redemption is a statute which confers upon the party, where land is sold for debt by execution, etc., the right to redeem or repurchase the land within the limited time after the sale. Reynolds v. Baker Walker Brothers, 46 Tenn. (6 Cold.), 221, 228. The term "redemption" implies that there is something to be redeemed, something lost to be gotten back, and hence where a sale for taxes is void and passes no title, there can be no redemption. Webb et al. v. Ritter, 60 W. Va. 193, 54 S.E. 484, 491.
A contract to convey lands and an assignment thereof are conveyances within the Record Act of Minnesota which defines the word "conveyance" as every instrument in writing whereby any interest in real estate is created, aliened, mortgaged or assigned, or by which the title thereto may be affected in law or equity, except wills and certain leases therein described, and powers of attorney. Shraiberg v. Hanson et al., 138 Minn. 80, 163 N.W. 1032.
An instrument releasing interest in an estate sought to be subjected to judgment was held a "conveyance" within a law prohibiting fraudulent conveyances. Schaefer v. Fisher et al., 137 Misc. 420, 242 N.Y.S. 308.
We have here, therefore, a sale of lands for taxes where the law provides that the tax collector's list of such sales confers on the purchaser an inchoate right in land defeasible only by redemption, which list, when recorded, is notice to all persons in the same manner as are deeds when filed for record, and which list confers on the tax purchaser the right to sue the former owner for felling timber thereon if cut by such former owner between the sale and the expiration of time for redemption, if not redeemed, — in other words, repurchased. We have also a law requiring the tax collector to deliver to the purchaser at the tax sale a receipt containing the price paid, the name of the purchaser, and a description of the land, which the statute provides shall be evidence of the sale. So, we have concluded that a definite right or interest in the land is conveyed by the tax collector, which, when he performs his duty, is a conveyance in the contemplation of the law entitling him to the fee of $1 for each conveyance to an individual tax purchaser, and if he fails to perform the duty of filing this list or files a defective list, the receipt given by him to the tax purchaser is sufficient evidence of the sale. The clerk's deed merely confers the right to possession, and is also evidence that the period of redemption has expired, and the land was not redeemed. The enactment of these two statutes in the same Code, we think, together with what we said, supra, prevents any conclusion that one repealed the other by implication, and especially do we believe that the re-enactment of the statute allowing to the tax collector this $1 for conveyances to individuals in the Laws of 1944 is conclusive that the Legislature did not intend to repeal it by implication in the Code of 1930. So thinking, in our judgment, the suggestion of error should be, and the same is, hereby sustained, and the trial court affirmed, and judgment rendered here for the appellee. The former opinion will therefore be withdrawn and the suggestion of error sustained, and judgment rendered here for appellee.
Suggestion of error sustained. Affirmed, and judgment here for appellee.