Gee v. Tucker , 127 Miss. 866 ( 1921 )

Sykes, J.,

delivered the opinion of the court.

The appellant, T. J. Gee, complainant in the chancery court, sought to confirm his tax title to certain lands previously owned by the appellee, Calvin Tucker. The tax sale was not made at the regular time, but the board of supervisors at their regular August meeting in 1917, proceeding under sections 2935 and 4367, Code of 1906 (sections 5270 and 7006, Hemingway’s Code), advertised and held the sale on September 3, T917, at which time the appellant bid in the lands in question. The list of lands sold to individuals and the conveyances were not filed in the office of tbe chancery clerk until September 12. The tax deed of the appellant was acknowledged before the chancery clerk on September 3. There are numerous questions raised as to the validity of this sale, but it is only necessary for us to notice one. The chancellor held the sale invalid and denied the relief prayed for in the bill.

There is a difference between sections 2935 and 4367, Code of 1906 (sections 5270 and 7006, Hemingway’s Code). Section 2935 requires not only that the list of lands sold to the state be immediately filed in the office of the chancery clerk, but also that conveyances to individuals be immediately filed. Section 4367 requires that the list 'of lands sold to the state and the list of conveyances to individuals be immediately filed in the office of the chancery clerk. Under these two sections lists of land sold to the state, lists of lands sold to individuals and conveyances to individuals must be immediately filed in the office of the clerk of the chancery court. Consequently there is no difference between the mandate of section 2935 requiring the conveyance to be filed immediately and the mandate of ‘ section 7006 requiring a list of lands sold to the state to be filed immediately. The provisions of section 4333, Code of 1906 (section 6967, Hemingway’s Code), which provides, among other things that a failure to return or record the list of lands sold to individuals shall not affect the title, cannot be invoked in this case, because, even if it be granted that this section be applicable to lands sold at a special sale, yet there is no provision therein contained •providing that a failure to file conveyances shall not affect the title, but it is only therein provided for a failure to file a list of lands sold to individuals.

We are therefore called upon to decide whether or not a delay of nine days in filing this conveyance was a compliance with the statute which requires this conveyance to be immediately filed.

The only testimony in the record as to how long it would have taken to make out the list of lands sold to individuals is that of the deputy sheriff who actually made the sale. He testifies that he could have made out this list in four or five hours. From the deed we know that it (the deed) was made out on the day of sale. There is no testimony in the record to show why the list of conveyances, or why the conveyances themselves, were not filed that day in the office of the chancery clerk, nor is there any reason or excuse given for this delay of nine days. We are therefore presented in this appeal with the identical question presented to the court in Fairly v. Albritton, 121 Miss. 714, 83 So. 801. In that case the question presented to the court was whether or not the filing of the list of land sold to the state thirty-four days after the sale invalidated it. The court held that it did. It is there stated:

“The word ‘immediately’ in the statute means that the filing must be done as soon as practicable, under the circumstances, after the sale. It was not intended to signify that the filing might be done within a reasonable' time, unless it may be said it means that it must be filed at once within such reasonable time as is practicable under the circumstances.”

There is no attempt whatever in this case to show that this conveyance was filed as soon as practicable under the circumstances. It is not shown that the sheriff was so busy with other duties that the list could not be filed immediately. On the other hand, the only inference we can draw from this testimony is that the list and the conveyance could have been made out and filed within a few hours, certainly on the next day. In fact the deed was actually acknowledged on the day of sale. No reason or excuse is shown for the delay of nine days. We therefore conclude that the conveyance was not immediately filed as required by statute. For this reason the decree of the lower court is affirmed.

Affirmed.