Murphy v. Seward , 145 Miss. 713 ( 1926 )

^* Corpus Juris-Cyc. References: Statutes, 36Cyc, p. 1181, n. 38; p. 1183, n. 46; Taxation, 37Cyc, p. 1470, n. 23 New, 25; p. 1471, n. 26; p. 1472, n. 37 New; Trespass, 38Cyc, p. 1164, n. 46. The appellant, Mrs. C.W. Murphy, instituted this suit against Mrs. J.C. Seward and her husband, D. Seward seeking to recover damages for the cutting of trees from all of section 10, township 15, range 4 west, in Humphreys county.

The declaration is in two counts, the first count being for the statutory penalty of fifteen dollars per tree. This count specifically alleges that the plaintiff is the owner of the land in question, and that within twelve months of the filing of the suit, the defendants, without her knowledge or consent, willfully, intentionally, and knowingly entered upon these lands and cut and removed the trees. The second count is for the actual value of the trees cut and removed.

The defendants pleaded the general issue to the declaration, and, at the conclusion of the testimony, the court instructed the jury peremptorily to return a verdict in favor of the plaintiff for the actual value of the trees cut. Upon this issue, the jury returned a verdict for seven hundred dollars as the actual value of the trees cut, and both sides appear to be satisfied with this finding.

The plaintiff requested that the jury be peremptorily instructed to return a verdict in her favor for the statutory penalty of fifteen dollars per tree. The court refused this instruction and declined to submit to the jury the question of the recovery of the statutory penalty, but granted an instruction in favor of the defendants, denying the right of the plaintiff to recover the penalty under the facts in evidence. On appeal the plaintiff complains of the action of the trial court, first, in refusing a peremptory instruction to the jury to find in her favor for the statutory penalty, and, second, in refusing to the plaintiff a requested instruction submitting to the jury the question of plaintiff's right to recover the statutory penalty, and the sole question presented for decision is, whether, under the facts in evidence, the appellant is entitled to recover this penalty.

The material facts shown by this record are substantially as follows:

The land, on which the trees in question were located, was sold to the appellee Mrs. J.C. Seward on May 1, 1922, for the taxes for the fiscal year 1921, and, after the two-year period for redemption had expired, the tax deed was delivered to her and was filed for record on May 15, 1924. The appellee Mrs. Seward failed to pay the taxes on this land for the year 1922, and on April 2, 1923, it was sold by the tax collector to the appellant. The appellant failed to pay the taxes for the year 1923, and on June 2, 1924, the land was again sold by the tax collector to P.H. Murphy, husband of Mrs. C.W. Murphy. After the period for redemption from the tax sale to Mrs. C.W. Murphy had expired, and on April 10, 1925, P.H. Murphy conveyed to the appellant all the interest he had acquired in the lands under and by virtue of the tax sale of June 2, 1924. The regularity and legality of all these tax sales are admitted.

Shortly after the appellee Mrs. Seward received her tax deed to this land, acting through her husband as her agent, she began cutting the trees on this section of land, and within a few months, according to the testimony, she cut and removed seven hundred four trees of the class for which the statutory penalty may be recovered.

D. Seward, the husband and agent of Mrs. J.C. Seward, the owner of the land under and by virtue of the tax sale of May 1, 1922, testified that the land was purchased for his wife through Mr. V.B. Montgomery, one of the attorneys for the appellant in the present case, who assured him that there were no irregularities about the tax sale or title; that he had never seen the land until after Mrs. Seward received her deed, and did not know whether or not it was timbered; that after the delivery of the tax deed he, as Mrs. Seward's agent, went on the land and took possession of it for the purpose of clearing it up; that he examined the timber with a view of moving it to get it out of the way at the least expense; that the timber was of poor quality, and he first undertook to sell it, offering it as low as one dollar and fifty cents per thousand feet, and that he was unable to get a buyer at that price, and, in fact, could not sell it at any price; that having failed to sell the standing timber, he undertook to cut and market it himself; that he began cutting the timber early in June, 1924, and continued to cut until August 13, 1924; and that he had this timber sawed into lumber at a nearby sawmill.

He further testified that, when he cut this timber, he fully and in good faith intended and expected to redeem the land from the tax sale of 1923 and 1924, before the periods for redemption expired, and thereafter devote the land to agricultural purposes or attempt to sell it; that in marketing the timber, however, he actually suffered a loss of four hundred seventeen dollars, not including the purchase price of the land at the tax sale, and, in addition thereto, the state revenue agent undertook to enforce a back tax assessment of two thousand dollars for timber on the land; that, on account of their losses on the land and the large amount of taxes then assessed against the land, they decided not to put further money into the venture, and thereupon abandoned the land and their intention to redeem the same.

The appellant asserts her claim to the statutory penalty by virtue of the tax title which she acquired at the sale made to her on April 2, 1923, and under section 4332, Code of 1906 (section 6966, Hemingway's Code), which prescribes the form of conveyance to be executed by the tax collector, and which provides that such conveyance "shall vest in the purchaser a perfect title to the land sold for taxes, subject to the right of redemption," the section under which her action is brought being chapter 167 of the Laws of 1924, which reads as follows:

"If any person shall cut down, deaden, destroy or take away, if already cut or fallen, any cypress, white oak, black oak, or other oak, pine, poplar, black walnut, cherry, pecan, hickory, chestnut, birch, ash, holly, gum, persimmon, or beach tree, on land not his own, without the consent of the owner, he shall pay to the owner of the tree or trees, as a penalty, fifteen dollars for every such tree so cut down, deadened, destroyed or taken away; and for every other tree not herein described so cut down, deadened, destroyed, or taken away, the sum of five dollars shall be paid as a penalty. And in addition to the penalty to be paid as herein provided, he shall pay to the owner of such tree or trees the actual value of such tree or trees so cut down, deadened, destroyed or taken away; and for such actual damages and for such penalty the owner may recover in the same suit."

Under the law as it existed prior to the enactment of this statute, this court had held that there could not be a recovery of both the penalty and actual damages, but the one was exclusive of the other, and the only material change made by this statute, which amended section 4977, Code of 1906 (section 3246, Hemingway's Code), is to provide for the recovery of both the statutory penalty and actual damages, or the value of the trees, in the same suit. In so far as the statutory penalty is concerned, this statute is highly penal and must be strictly construed. It does not change the law in any respect as to those things which are necessary to be shown to support an action for this penalty. The elements of willfulness, recklessness, or gross negligence, which have always been necessary to support an action for the penalty must still be shown, and the same legal principles which controlled the recovery of the statutory penalty before the enactment of chapter 167, Laws of 1924, are still controlling and are applicable to the case at bar.

While section 4332, Code of 1906 (section 6966, Hemingway's Code), provides that a tax collector's conveyance "shall vest in the purchaser a perfect title to the land sold for taxes, subject to the right of redemption," this conveyance is not delivered to the purchaser until the expiration of the period of redemption, and during the interim the purchaser has none of the rights of true ownership. He has no right to the possession and enjoyment of the estate, and, if he enters upon the land without the consent of the delinquent owner, he is a trespasser. In the case of Pool v. Ellis, 64 Miss. 555, 1 So. 725, it was held that:

"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."

This being true, there arises the interesting question, and one not free from doubt, as to whether, after the period of redemption has expired, the purchaser of land at a tax sale may, in any event, maintain an action against the delinquent owner for the statutory penalty for a trespass committed before the expiration of the period of redemption, and while such delinquent owner was rightfully in possession of the land, but it is not necessary to decide that question in disposing of the case at bar.

A delinquent owner of lands sold for taxes, who cuts timber thereon, having at the time the right and the bona-fide intention and purpose to redeem the land from such tax sale before the period for redemption expires, is not guilty of such a willful trespass as will subject him to the penalty provided by this statute. We do not think there is any direct testimony or circumstances in this record that disputes the positive testimony that the appellees went upon the land in the honest belief that Mrs. Seward was the owner thereof, and that they had the bona-fide intention and purpose of redeeming the land from subsequent tax sales at the time they cut the trees. As circumstances tending to dispute the testimony of Seward as to his intention to redeem the land and sell the same or devote it to agricultural purposes, the appellant stresses the fact that the appellees shipped away the lumber derived from these trees and did not use any of it in the construction of cabins on the land, and the further fact that they afterwards conveyed the land for a consideration of one dollar. These facts are not inconsistent with the testimony that, after they cut the trees and before the expiration of the period for redemption, on account of changed conditions, they decided not to redeem the land but to abandon it. The good faith of the delinquent owners of the land being shown by the testimony without conflict, we think the court below was correct in granting the peremptory instruction in their favor on the count for the statutory penalty, and the judgment of the court below will therefore be affirmed.

Affirmed.