Clanton v. Callender , 198 Miss. 614 ( 1945 )

SPECIALLY CONCURRING OPINION. I do not think that Section 3256, Code 1930, which is now Section 9936, Code 1942, providing, among other things, that "A failure to transmit or record a list, or a defective list, shall not affect or render the title void," was ever intended to cure the failure of the sheriff and tax collector to make and certify the list of lands sold by him to the state for taxes, as required by this statute. There are no other means by which a purchaser of land sold to the state for taxes can prove his title thereto than by the introduction of the list of such lands, made by the sheriff and tax collector. This is not the case where lands are sold to individuals for taxes, since Section 3254, Code 1930, which is now Section 9933, Code 1942, provides that the receipt delivered by the sheriff and tax collector to such a purchaser, showing the amount paid, a description of lands sold, the amount of taxes due thereon, and the date of sale, shall be evidence of the purchase of said land by said individual purchaser. Therefore, I think that the case of Roebuck v. Bailey, 176 Miss. 234,166 So. 358, involving a tax sale to an individual, was correctly decided. But in my opinion the later case of Lear v. Hendrix, 186 Miss. 289, 187 So. 746, involving a list of lands sold to a municipality, should not have applied the case of Roebuck v. Bailey, supra, as a precedent for the decision reached in the Lear case.

However, approximately six years have intervened since the decision was rendered in the case of Lear v. Hendrix, during which time many thousands of acres of land forfeited to the state for taxes have been patented to individuals, and doubtless many investments made in reliance upon the validity thereof, making it necessary that we should now adhere to that decision where vested rights acquired on the faith thereof are involved, and in other cases, unless we are able to say that it is so manifestly wrong and mischievous in its operation as to require that it be overruled.

If the case at bar was one of first impression, I think that the decision herein should be that the statute in question does not cure the failure of the sheriff and tax collector to make and certify the list, as applied to lands sold to the state for taxes, but that it should apply only to a failure to transmit or record the list which he has made and certified, even though the same may be otherwise defective, including his signed certificate thereto.

For the reason hereinabove stated, I concur in the result reached by the main opinion herein.