K. C. Lumber Co. v. Moss , 119 Miss. 185 ( 1918 )

Ethridge, J.,

delivered the opinion of the court.

The appellee on the 22d day of June, 1916, purchased from the state of Mississippi certain lands and filed this bill in the chancery court to confirm his title thereto. The lands in question were sold on the 5th day of April, 1909, for the taxes for the year 1908 and were struck off to the state. The list was received by the land commissioner on the 26th day of July, 1909, and the following notation made thereon:

“List received from auditor July 26th, 1909, recorded and mailed to chancery clerk July 31st, 1909. J. L. Gillespie, Land Commissioner, by J. M. Smylie, Clerk.”

The complainant introduced a certified copy of the list from the land commissioner in evidence, and the following contentions were presented here on this appeal: First, that it was error to admit in evidence certified copy of the land commissioner, because of the notation above that it was received from the auditor, and also because it is alleged not tó he a copy of the original, but merely a copy of the records of the land commissioner’s office. Second, it is contended that the

tax sale of April 5, 1909, was void because it was not filed with the land commissioner on the day of the sale. Third, it is insisted that the case of Weston Lumber Co. v. Durham, 109 Miss. 367, 69 So. 177, construing section 2933 of the code, is erroneous, and, if the decision is not erroneous in construing the statute as there construed, the sale will be void because the statute, as construed by the court in the above case, would be in conflict with section 79 of the Constitution of 1890, giving the owner two years within which to redeem the tax sale.

We do not think there is any merit in the contention that it was error to admit the certificate and list of lands introduced in evidence showing the sale in question to the state. Section 2933 provides that if upon offering land of any delinquent taxpayer, constituting one tract, no person will bid for it the whole amount of taxes and all costs, the collector shall strike off the same to the state, and he shall on and before the first Monday of April thereafter transmit to the land commissioner a certified list of the lands struck off by him to the state, specifying the day of sale and the amount of taxes for which the sale was made and each item of cost incident thereto, and the land commissioner shall correct the list, if necessary, by the records of his office and the United States Land Office and strike therefrom the land improperly on it and return it to the collector for correction, if necessary, and the collector shall correct it as instructed by the land commissioner and return to him as corrected, and when the list is corrected it should be recorded in the land commissioner’s office and shall then be certified by the land commissioner and be transmitted to the clerk of the chancery court of the county and be by him recorded in a book kept for that purpose. Under this statute the land commissioner records the list sent him by the tax collector, and certified copies of such lists from the books in the land office are admissible in evidence.

The second contention is that the tax sale is void because it is contended that the case of Howie v. Alford, 100 Miss. 485, 56 So. 797, rendered tax sales void sold to individuals under like circumstances, and that this court was wrong in the construction of the statutes involved in this suit in Weston Lumber Co. v. Durham, 109 Miss. 367, 69 So. 177. We think the case of Weston Lumber Co. v. Durham, 109 Miss. 367, 69 So. 177, was correctly decided and decline to overrule that case. This case constitutes a rule of property and should not be overruled, unless'plainly and manifestly wrong.

The next contention is that the statute as construed in Weston Lumber Co. v. Durham is in conflict with section 79 of the state Constitution. This section reads as follows:

“The legislature shall provide by law for the sale of all delinquent tax lands. The courts shall apply the same liberal principles in favor of such titles,,as in sale by execution. The right of redemption from all sales of real estate, for the nonpayment of taxes or special assessments, of any and every character, whatsoever, shall exist, on conditions to be prescribed by law, in favor of owners and persons interested in such real estate, for a period of not less than two years.”

Section 4330, Code of 1906, reads as follows:

“The owner or any person interested in any land sold to the state for taxes may redeem it, or any part of it, where it is separable by legal subdivisions of not less than forty acres, or any undivided interest in it, at any time within two years after the day of sale to the state, by paying to the land commissioner the amount of all( taxes for which the land was sold, and all the costs incident to the sale, and all taxes and costs accrued thereon since the sale, and twenty-five per centum on all taxes for which it' was sold added thereto; and upon payment to the land commissioner he shall execute to the person redeeming the land a release of the title of the state thereto, and the land commissioner shall immediately notify the auditor, chancery clerk, and tax collector, giving the name of the person redeeming, date of the redemption, and description of the lands, and when they receive such notice they shall at once make an entry thereof upon their records. The tax collector shall keep a record of state tax lands for convenience in making settlements with the state and county. ’ ’

Section 2936, Code of 1906, is almost an identical statute with the one just quoted, and reads as follows:

“The owner or any person interested in any land sold to the state for taxes may redeem it, or any part of it, where it is separable by legal subdivisions or not less than forty acres, or any undivided interest in it, at any time within two years after the day of sale to the state, by paying to the land commissioner the amount of all taxes for which the land was sold, and all the costs incident to the sale and all taxes and costs accrued thereon since the sale and twenty-five per centum on all taxes for which the land was sold added thereto; and upon such payment to the land commissioner, he shall execute to the person redeeming the land a release of the title of the state thereto, which shall be attested by the seal of the land commissioner’s office, and shall not require an acknowledgment of its execution before an officer, but shall be entitled to be recorded without acknowledgment ; and when duly executed, as herein provided, shall release all claim or title of the state to the land.”

Section 2937, Code of 1906, requires the tax collector to keep a record of state tax lands, and reads as follows:

“The tax collector shall keep a record of- state tax lands for his convenience in collecting taxes and making settlements with the state and county; and the land commissioner, when he releases lands upon redemption, shall immediately notify the auditor, chancery clerk, and tax collector, giving name of person redeeming, date of redemption, and description of lands, and the auditor, clerk, and collector, when they receive such notice, shall at once make the entry thereof upon their records.”

It will be noted from the language of section 79 of the Constitution of 1890 that the right of redemption from all sales of real estate for nonpayment of taxes or special assessments of any and every character whatsoever shall exist on conditions to be prescribed by law in favor of owners and persons interested in such real estate for a period of not less than two years. Under the very terms of this statute, the right of redemption shall exist on “conditions to be prescribed by law,” and the statute above quoted gives the owner, or any person interested in any land sold to the state for taxes, the right to redeem it within two years after the date of sale to the state. The right of redemption under this statute dates from the day of sale, and the owner, or other person interested may at any time after the sale pay or tender to the sheriff before the list is made out and transmitted to the land commissioner (Burroughs v. Vance, 75 Miss. 696, 23 So. 548), and to the land commissioner, after the list is filed with him, the taxes, costs, and damages prescribed by law, and upon such payment he has the right to a certificate of redemption and may resort to the courts to enforce his rights of redemption and the issuance of a certificate in case of refusal on the part of the land commissioner to accept the money and issue the certificate. Both sections 4330 and 2937 require the tax collector to keep a list of the land sold, and the date of sale and the amount due for redemption can be easily ascertained by the records required to be kept by the tax collector, so that no practical difficulty is encountered by any owner seeking to redeem. It is true that the tax collector has until the first Monday of April following the sale in which to transmit to the land commissioner a certified list, but it does not prevent his doing so before the 1st of April, and in the present case the list was filed on July 26th following the sale. There was nothing to prevent the owner from redeeming, and the record does not’ show any effort on his part to redeem at all. It is not a case where the owner tendered money for a redemption and the reeiept and certificate of redemption was refused,"but is a case where there was no effort whatever to redeem. Every person is charged under the law with the notice and knowledge as to whether his taxes are paid, or not. If not paid at the time required, then his lands, may be sold in the manner prescribed by law, and he is charged with notice by law, of the time and place where such sales are required to be made. Necessarily some time must be allowed. officers charged with the making of sales and keeping records of tax sales in which to perform their duties; but the giving of such time does not interfere with the right to redeem, nor does the fact that the list may not be actually filed, so as to give full two years after such filing to redeem, interfere with the redemption. The law does not fix the two years from the date of the “filing” of the list, but from the date of sale. The records of the county kept by requirement of law regarding tax sales would have given the appellant all the information necessary for the exercise of his rights of redemption.

There is no merit in the contention that the list is invalid because of the notation that it was received through the auditor. The statute does not prescribe the method of transmission from the sheriff to the land commissioner, and therefore the method of transmission is not important. The essential thing is that it is transmitted.

We see no reason to disturb the holding of the court below, and the judgment is affirmed.

Affirmed.