Baird v. McNamara ( 1900 )

Calhoon, J.,

delivered the opinion of the court.

The questions here are, first, the proper construction of a legislative act as to the interest to be paid by a minor redeeming land from a tax sale, and, second, the proper adjustment of contentions as to rents and improvements on the lands redeemed.

Only two sections of the legislative act bear on the first .question. The act is that approved December 2, 1858 (laws of 1858, special session, p. 33), entitled, “An act to aid in re-' pairing and perfecting the levee of the Mississippi river in the counties of DeSoto, Tunica, Coahoma, Bolivar, Washington and Issaquena. ’ ’

The two sections bearing on this record are these:

“Sec. 6. Be it further enacted, That the tax hereinbefore levied or assessed shall be a lien on the lands within said district, and should any owner or owners of any lands, or any person interested in the same, fail to pay the taxes hereinbefore levied and assessed at or before the time when-the same may become due, it shall be the duty of the sheriff of the county in which said delinquent land may be situated, without further notice, on the second Monday in April in each and every year after the said tax may become due, to sell, at the courthouse door of his proper county, the land in default, or so much thereof as may be sufficient to pay the tax required and all costs of conveyance to the purchaser, to the highest bidder for cash, and, when sold, to execute a- deed' therefor to the purchaser, which deed shall vest in said purchaser a full and complete title in fee simple to the land so sold, and said deed shall be taken and received in any court of justice as vesting a perfect title in the purchaser, and shall be evidence that the title of the owner or owners, as well as the claim of all persons interested therein, is thenceforward vested in the purchaser, and shall be prima facie evidence that the land was subject to the tax for the nonpayment of which the same was sold, and that all the prerequisites of said sale had been complied with. The said sheriff may continue said sale from day to day until the whole of said land liable to sale shall be disposed of, and if ■ no person or persons shall bid the amount of tax due on any tract of land when offered for sale as aforesaid, such tract of land shall be struck off to the levee treasurer of the general board of commissioners, who shall be entitled to receive a deed therefor, executed to himself and his successors in office, which deed shall remain on file with the probate clerk of the county in which the land lies for the period of two years from the day of sale, unless the same shall be redeemed as is hereinafter provided, saving the rights of all minors and persons non compos mentis, who shall have three years to redeem after they come of age or become of sane mind, under the provisions of this act.

“ Seo. 1. Be it further enacted, That the levee treasurer of the general board of commissioners shall have power to sell any land struck off to him at private sale, provided he shall be able to obtain therefor the amount of the purchase money with all accruing taxes and costs, with ten per centum per annum upon the whole amount from the date of purchase. The sheriff’s deed, however, for all lands sold for taxes shall be and remain with the probate clerk, and should the owner or owners of said lands, their agents or attorneys, apply, they or either of them shall be entitled to the redemption of said land at any time within two years of the day of sale, upon the payment of the purchase money with all subsequent taxes due thereon, and fifty per centum per annum interest upon the whole amount. This redemption may be made from the levee treasurer himself whose receipt shall entitle the person redeeming to have canceled the sheriff’s deed, or the redemption may be made from the probate clerk of the county in which the lands lie and where the sheriff’s deed is kept, the said probate clerk being required to receive said money and pay the same over to the order of the levee treasurer of the general board, or to the person entitled.to receive the same; and in default of this, said probate clerk shall be liable on his bond at the suit of the board of levee commissioners or the party injured in the same penalty as prescribed for the nonpayment of state taxes, and should lands not be redeemed or sold as herein provided for the period of two years from the day of purchase, the sheriff’s deed shall be made a record in the proper county, vesting permanently without further right of redemption. The title in the levee treasurer of the general board of commissioners and his successors in office, or the person or persons who may have purchased the same, or the person to whom he may have transferred the same by private sale, all lands described in said deed, and when said vesture shall accrue to said levee treasurer, the land shall become the property of the general levee fund or other purchaser, and may be disposed of by the board of levee commissioners as they may by ordinance provide; provided, however, that all money paid or received for the redemption of lands purchased by the levee treasurer within the first three years in the counties of Tunica, Coahoma, Bolivar, Washington and Issaquena, shall accrue to said counties respectively, and be paid by the levee treasurer to the person authorized to receive the same. The sheriff, for making the deeds and delivering the same to the probate clerk, shall be entitled to receive from the levee treasurer the sum of one dollar for each deed, which sum shall be added and taxed in the costs, and the probate clerk, for receiving the money in redemption and paying the same over to the levee treasurer, shall be entitled to five per centum upon the total amount to be paid by the levee treasurer; and no sheriff’s deed shall be objected to for want of form, and when said deed shall embrace the lands of different claimants, the same shall not be surrendered to either, but the probate clerk shall mark, in case of redemption of any portion of said lands, the fact showing the part redeemed, and when said deed is recorded, the record shall show the fact that a portion has been redeemed and that the title to the same has reverted to the principal owner or owners.”

Appellee claims by tax title under purchase from the state in 1869, while appellants claim also by tax title through a sale by the proper tax collector of Sunflower county, in 1871, to the Liquidating Levee Board. The precise point of contention is whether or not the minor, in order to redeem, must pay fifty per centum per annum interest on the tax sale price and on all subsequent taxes up to the date of redemption. One side claims that he must, and the other side that he need not pay any of that interest at all. The one says that the law is so written that it is not subject to construction, that it is too plain in its language for any interpretation beyond its letter and clear, literal meaning, and reinforces this position by the legislative purpose to encourage purchases in order to build the levees. The other says that the fifty per centum clause does not apply to minors, or persons non compotes mentis, by any fair construction, and reinforces by the argument that such an interest, in a long-series of years would, in nearly every instance, enormously exceed the value of the property.

We do not concur with either side. The statute must be construed, if it can be, aud we think it can, so as not to work a gross hardship on either party, and yet conform to the policy indicated in the act. That policy was to discourage forfeitures of lands for taxes, and to encourage the purchase of forfeited lands so as to get money to build levees.

In reference to sane adults the legislature thought its object would be accomplished by requiring redemption within two years of the date of sale, on payment of the purchase money and all taxes to the date of redemption and interest on the sum total for the two years, at the rate of fifty per centum per annum, and we think nonsane persons and minors may redeem on the same terms within three years after the passing of the disability. If, however, such do not redeem within the two years, as they might, of course they must superadd to the total required at the end of that time, the interest on it at the legal six per centum rate up to the time that they do redeem, and like legal six per centum interest on each subsequent tax payment by the purchaser. This we think the meaning of the words in section 6, “ who shall have three years to redeem after they become of age, or become of sane mind, under the provisions of this act, ’ ’ construed with the provisions referred to in section 7. We now proceed to announce what we think to be the proper basis for accounting on the facts of this particular case, and we announce it in view of the cases of Tatum v. McLellan, 56 Miss., 352; Miller v. Ingram, 56 Miss., 510; Nixon v. Porter, 38 Miss., 401; Phillips v. Chamberlain, 61 Miss., 740; Gaston v. King, 63 Miss., 326; French v. McAndrews, 61 Miss., 187; Stewart v. Matheny, 66 Miss., 21; Hughes v. Stallings, 52 Miss., 375; Staton v. Bryant, 55 Miss., 261; Robinson v. Jones, 68 Miss., 794; Hudson v. Strickland, 58 Miss., 186; Uhler v. Adams, 73 Miss., 332; Sivley v. Summers, 57 Miss., 712.

We do not delay to separately discuss these cases, as they may be examined at leisure by those interested in the subject.

The original bill in the record before us was filed December 8, 1890, and has two aspects, in that it seeks, first, to have appellants’ tax title declared absolutely void; and, second, if that contention did not prevail, to be allowed to redeem. The litigation dragged along for several years, when this court, in 72 Miss., 89, on November 26, 1894, held the tax title of appellants valid, subject only to the right of appellee to redeem. Meantime, the appellants, who had improved the property, before suit brought, so as to bring it from a condition with no rental value to a condition yielding $150 yearly rents, put on it, after suit brought, other valuable improvements, so that it yielded an annual rental of $450, and they continued to pay the taxes.

In this situation of affairs appellants, in possession, believing their title valid, as it was afterwards held to be, but, as held by the court, defeasible by a redemption, which might, or might not be made, had the option to leave the land a wilderness, and of no benefit to them or appellees or the commonwealth, or to give it rental value by improvement. Of course they were entitled to the value of their improvements ante litem motam, and, of course, they cannot claim anything of the cost of the improvements they' put on the land post litem motam.

But the appellee, who did not risk paying any taxes before or after suit, while claiming the benefit of the law giving him all the improvements put on since the suit, demands the full rent, $450 per annum, the entire enhancement from $150 caused by their erection. We are constrained to approve this on the authorities. We think the adjustment of all matters of accounting between • the parties, before and since the suit was brought, should be as follows: The original tax purchase price, from the date fixed in the decree below, and the taxes for two years from the purchase, .and fifty per centum per annum on the whole, shall become the principal, on which shall be-calculated six per centum per annum interest, to which shall be added annual tax payments, with like interest, separately calculated from their payment to the time when improvements were made, and their cost, without interest, shall be then added to such total whenever a credit for rentals arises, and the rentals received are to be credited only when they equal or exceed the interest on the debt, and thus a new principal shall arise, and so on for all the time before and during the suit, but no allowance shall be made for the cost of improvements made after suit brought, but credits for rentals thereafter shall be of such rentals as enhanced by such • improvements made after suit brought, and the finding of the chancellor of rental values before suit, and of the cost of improvements, and what the improvements were shall stand as shown in his final decree, which shall be modified otherwise to conform to this opinion and an account to be taken on the basis herein announced, and the appellee is to be taxed with the cost of this appeal.

Reversed m.d remanded.