Byrd v. Dickson , 152 Miss. 605 ( 1929 )

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.