Jones County Land Co. v. Fox , 120 Miss. 798 ( 1919 )

SteveNs, J.,

delivered the opinion of the court.

In this ease the Jones County Land Company, a corporation, was complainant and appellee the defendant and cross-complainant in the trial court. The bill is one for the confirmation of a tax title. Appellant on April 6, 1914, purchased from the tax collector of Jones county the south half of southeast quarter, and the northwest quarter of southeast quarter, section 14, township 6, range 11 west, and received therefor a tax deed, signed “Luther Mill, Tax Collector, by Amos Jordan, D. S.” This deed was duly filed with the chancery clerk, and remained on file for two years, after which it was delivered to the purchaser.

The land involved in this litigation formerly belonged to W. T. McGrilvary, who received a patent from the United States government, and he owned the land at the time of his death. At the time of the assessment a.nd sale the land belonged to the widow and the three children of W. T. McGilvary, deceased, as tenants in common. The widow subsequently married one B. W. 'Davis and the three forty-acre tracts of land here involved were assessed to S. A. McGfilvary. W. T. Mc-Gilvary also owned the northeast quarter of northeast .quarter, section 23, township 6, range 11 west, which immediately adjoined the lands which comprise the. subject-matter of this suit. The forty in section 23 was separately assessed on the assessment roll to Mrs. N. A. Davis. On June 16, 1914, after the tax sale, J. L. Mc-Gfilvary, one of the contenants, conveyed his undivided one-fourth interest to D. B. Fox, appellee, and Fox was made a party defendant to the original hill for confirmation. The appellant obtained a decree pro confesso and a' final decree against all of the defendants except Fox. Appellee, Fox, filed his answer, denying all of the material allegations of the hill, and made his answer a cross-hill, in which he attacks the validity of the tax deed on three grounds: First, that the tax deed is void on its face because it is not properly signed and executed; second, that the attempted sale was void because the sheriff who attempted to make the sale did not offer the lands in separate forty-acre tracts as provided by the statute; third, because the tax collector did not consider and treat the four forty-acre tracts as constituting a single tract and as the property of the same owner, but attempted to make two sales in violation, as contended, of our statute.

It is also alleged in the cross-bill that the widow and the two other children on November 30, 1916, executed and delivered to appellee their warranty deed for the remaining three-fourths interest, and thereby appellee became the owner in fee simple of all the lands sued for; that at the time this deed was executed Wirt' Mc-Grilvary was a minor; that the statutory period for redemption for the minor’s interest had not expired, and that Mr.' Fox, as assignee of the minor, had the right to redeem the minor’s interest; and accordingly appellee contends and prays tlie court that, if the tax deed he upheld, he he accorded the right to redeem an undivided one-fourth interest, and offers to do equity, and tenders unto the court the amount which the court finds to be necessary to redeem. The' case was set down for hearing on bill, answer, cross-hill, answer to the cross-bill and proof.

On the trial of the case cross-complainant introduced Amos Jordan, the deputy sheriff and tax collector who made the sale, in an effort to show that this officer did not obey the statute in the method of sale. It appears that the cause was submitted on oral téstimony taken before the chancellor, and that a stenographer was employed to take down the evidence. According to the stenographer’s notes, Mr. Jordan on direct examination was asked the following questions, and made response thereto as follows:

“Q. When you sold the three forty’s, how did you sell them A. I would offer the west one-half of the southeast quarter for the taxes and costs of the three forty’s, and I wouldn’t get any bid, then I would offer the southeast of the southeast for the taxes and costs of the whole thing, and didn’t get a bid, and then I would .offer it all together and got a bid on it. Q. And that is the way you sold it? A. Yes, sir.”

There was some controversy .between counsel as to what the witness testified to on direct examination, and the court permitted the witness to be recalled for ftather examination, and on a subsequent examination the following appears:

<£Q. When you sold the three forty’s, in question, how did you sell them? just' state what your testimony was relative to this. A. I would offer one forty for taxes and costs on the 3 — that is my recollection — and I would offer one forty for taxes and costs on three forty’s. If I wouldn’t, get a bid, then I would add another forty; and, if I.didn’t get a bid on- these two, I would add the third forty. That1 is the way it was done. That is what I intended to say down .yonder. . ,. . The way I sold it, I would offer one forty and if'I couldn’t get a hid, I would add another, and then, if I didn’t get a bid. I would offer them «all together. ... I would offer the first one separately,” etc.

There was a general decree for the defendant and cross-complainant, Fox, canceling the tax deed and dismissing the original hill, and from this decree the tax purchaser appeals.

In the argument at the bar, as also in.the briefs, the same grounds upon which the tax deed was assailed in the court below are relied upon here. We - shall take them up for consideration in the order in which counsel present them.

There is no merit, we think, in the first contention that the tax deed is void on its face. The deed is executed in the name of Luther Hill, Tax Collector, by Amos Jordan, D. S. In McReae v. Swalm, 81 Miss. 679, 33 So. 503, this court, speaking through Chief Judge Whitfield, said: “After a careful consideration, we are of the opinion, clearly, that a deputy sheriff is virtute officii, also deputy tax collector.”

By statute (section 4694, Code of 1906; section 3111, Hemingway’s Code) the sheriff of each county is, by virtue of his office as sheriff, made tax collector, and if the sheriff fails to qualify by giving the bond required as tax collector, he vacates his office as sheriff. The sheriff is by a separate statute given power to appoint one or more deputy sheriffs and to remove them at pleasure, and such deputies ‘ ‘ shall have authority to do all the acts and duties enjoined upon their principals.” Section 4664, Code 1906 (section 3981, Hemingway’s Code).

The record in this case shows, not only how the deed was signed, hut that Luther Hill was the tax collector of the county, and that Amos Jordan was acting as a regular deputy sheriff and tax - collector in making the tax sale here questioned. The abbreviation or letters “D. S.” can mean nothing else except deputy sheriff. Mr. Jordan was put upon the stand as appellee’s witness to show the method and manner of sale in this case and thereby removed any possible doubt as to the indentity of the party purporting to act as deputy. It is conceded that the recitals of the deed are in usual form, and the only alleged infirmity is in the signature.

It is next contended that the sale was void because the land was not offered for sale in the manner provided by section 4328, Code of 1906. Section 6962, Hemingway’s Code, providing among other things that the tax collector “shall first offer forty acres, and if the first parcel so offered do not produce the amount due, then he shall offer another similar subdivision and so on until the requisite amount be produced, or until all the land constituting one tract and assessed as the property of the same owner be offered.”

This objection is based upon the assumed fact that the tax collector did not first offer, forty acres. The statement which Mr. Jordan made as a witness on his first or direct examination tended to uphold this allegation of the cross-bill, but there was some controversy between counsel as to what the witness said or intended to say on this point, and by permission of the court . the witness was reintroduced, and thereupon made a definite and detailed statement as to the exact method he pursued in offering the land for sale, and upon the re-examination the positive testimony of the tax collector supports the validity of the sale.

Appellant as complainant introduced its. tax deed, and this conveyance is prima-facie evidence that the assessment and sale of the land was legal and valid. To overcome this prima-facie showing the burden of proof was upon the cross-complainant to establish an illegal procedure by the officer making the sale. The testimony of .the officer, taken as-a whole' does not meet the burden thus cast upon the cross-complainant, and the conveyance of the tax collector upon the showing made by this one witness must be upheld. No other witness testified on this point. The final statement of the witness is definite on the point that he did in fact first offer forty acres, and. not receiving a bid upon the first forty, he then offered another similar subdivision, and so on until all three forties were offered as a whole.

The third ground of attack is based upon the theory that the tax collector made two sales of land, constituting a single tract and assessed as the property of the same owner, in violation of the quoted sections of the statute. It is contended that the lands involved in' this suit in section 14 joined the northeast quarter of the northeast quarter of section 23, in the same township and range, then owned by the same-parties who were the owners of the lands embraced in the tax deed involved in the present inquiry, and that all four forties should have been considered as a single tract and as the property of the same owner. In his oral examination the deputy sheriff stated that S. A. McGilvary and Mrs. N. A. Davis is . the same party. The lands involved in this suit, it will be remembered, were assessed to S. A. McGilvary, while the forty acres in section 23 were assessed to Mrs. N. A. Davis. Under the testimony, conceding .that S. A. McGilvary and Mrs. N. A. Davis is • the same party, there was an error on the assessment roll in the initials of Mrs. Davis. Her first husband was W. T. McGilvary, and her second husband, B. W. Davis. She could not therefore have been S. A. McGilvary and N. A. Davis. From all that appears on the assessment •rolls there was separate ownership. The statute says, “All the land constituting one tract and- assessed as the property of the same owner.” If, then, the assessment roll must govern, the tax collector was right in making a separate sale of the forty acres in section 23.

Appellee relies upon the decision of this court in the case of Wilkerson v. Harrington, 115 Miss. 637, 76 So. 563, and counsel state that the learned chancellor relied upon and followed the opinion in this case. We are of opinion that the chancellor went beyond the point decided in Wilkerson v. Harrington, and that the result reached by him would necessarily rest upon the private opinion of the tax collector as to the ownership of the separate parcels of land. It would not be based upon the assessment roll. In the Wilkerson Case all the land was correctly assessed to Mr. Wilkerson, and the fact of his ownership appeared on the assessment roll. The statute does not authorize the tax collector to make one sale of lands assessed to ¡separate owners or even to embrace in one sale lands assessed to different names or persons whether owners or not. On this point we hold that the assessment roll must govern. This is in effect the declaration of Chief Justice Woods, speaking for this court in Higdon v. Salter, 76 Miss. 769, 25 So. 865, where he observed:

“The statute is plain that all the land constituting one tract, and assessed to the same owner, may be sold if the requisite amount cannot be produced by the offer of subdivisions of the land, but it was never in contemplation that a collector; acting on his private opinion touching the constitution of separate parcels making one tract, or of the ownership of separate parcels, and utterly disregarding what was clearly shown on the assessment roll, might unite the lands of two. distinct owners of separate tracts and sell all for the taxes unpaid of one or the other or both of the owners.”

As a matter of fact none of the lands in this case were assessed to all of the real parties in interest. The lands at the time of the sale belonged to Mrs. Davis, and her three children as tenants in common.

We adhere to the ruling in Wilkerson v. Harrington, but regard that case as easily differentiated from the ease at bar. The rights of the purchaser cannot be ignored, and to disregard the probabilities and appearances as gathered from the assessment roll and rely upon the private opinion or knowledge of the tax collector would involve tax sales in much doubt. ■'

On all grounds of attack the conveyance must be upheld. On this, the main point, appellant is entitled to a, reversal and a decree here. But on the right of appel-lee to redeem the undivided one-fourth interest of Wirt McGilvary, the cause should be remanded. In opposition to the right of redemption, appellant contends that the allegation of the cross-bill as to the minority of Wirt McGilvary is not supported by proof. The cross-bill in explicit terms charges that Wirt McGilvary was a minor at the time of the sale, and that the time for redemption had not expired when he sold and conveyed his interest to ' appellee. • In the answer to the cross-bill appellant stated: “It is not advised as to the age of said Wirt McGilvary, one of the 'defendants of said cross-bill, but demands strict proof of the same.”

This was not sufficient to put cross-complainant to proof. There could be no trial without a real issue, and appellant as defendant to the cross-bill should at least have denied this material allegation on information and belief, Hopper v. Overstreet, 79 Miss. 241, 30 So. 637.

By section 4338, Code of 1906 (section 6972, Hemingway’s Code), infants and persons of unsound mind are given “the right to redeem the same within two years after attaining full age or sanity, from any purchaser thereof, on the terms herein prescribed, and on their paying the value of any permanent improvements,” etc. This right, said the court in Moody v. Hoskins, 64 Miss. 468, 1 So. 622, is something more than mere grace, a right which the legislature after a sale for taxes cannot take away or destroy. Judge Campbell in this case speaks of the estate acquired by a tax purchaser as “a conditional or contingent one, which was liable to be defeated and divested by tbe redemption of tbe land as prescribed.”

Tbe statute says that tbe owner of tbe land or “any person for bim” máy redeem it; and. after tbe tax deed has been delivered, infants may on tbe same terms redeem from any purchaser thereof ,’’ and tbe right may be exercised within two years after attaining full Wilson v. Sykes, 67 Miss. 617, 7 So. 492, upholds the right of infants owning an undivided interest to redeem only their portion of tbe land.

We regard tbe right then as-a property right which infants may convey by deed and which may be exercised .by the infant’s vendee or by any one for the infant within the time prescribed by statute. Any question as to the amount necessary to redeem is not presented, and must be left to the chancellor upon further consideration of the case.

The decree appealed from will accordingly be reversed.. and a decree entered here confirming the tax title of appellant to an undivided three-fourths interest in the lands involved in this suit, but remanding the cause solely upon the issue as to cross-complanant’s right to redeem the undivided interest of Writ McGrilvary, with directions that the necessary amount be ascertained and fixed by the chancellor, and such further proceedings had as may be- appropriate upon this issue.

jReversed and remanded.