Swalm v. Sauls , 141 Miss. 515 ( 1926 )

The appellee, M.N. Sauls, filed his bill in the chancery court of Lincoln county, against the appellant, F.S. Swalm, by which he sought to have the court decree that he had legally redeemed from tax sales by the tax collector of Lincoln county and the tax collector of the city of Brookhaven in said county, a lot owned by him in said city, described as the north half of lot 14 in block 38, and in the alternative to redeem the lot from the tax sales, should the court hold that he had not already successfully redeemed it. There was a trial on bill, answer, and proofs, resulting in a final decree for appellee, from which appellant prosecutes this appeal.

The question whether appellant had legally redeemed the lot involved from the tax sales is pretermitted (because the members of the court are not in accord on that question), and, going to the question whether appellee, under the pleadings and proof, was entitled to maintain his bill to redeem the lot, the decision of which, in our view, will render unnecessary the decision of the other question, the following case is shown by the record:

H.E. Connor owned the lot involved, the north half of lot 14 in block 38 in the city of Brookhaven, and also another lot near by, but disconnected from that lot. There is a lot between the two, owned by some one other than Connor and the parties to this cause. Connor was indebted to appellee, which indebtedness was secured by a mortgage on the lot here involved. In assessing the two lots for state, county, and municipal taxes, Connor had them assessed in solido. Each lot had a residence on it. Appellee alleged in his bill that the lot involved in this cause was of less value than the other lot. This allegation was not denied by appellant's answer. There was a sale by both the tax collector of Lincoln county and by the tax collector of the city of Brookhaven for the taxes delinquent thereon. Both lots at each of the sales were offered and sold together for their joint taxes. Appellant became the purchaser. Deeds were executed by the tax collector of the county and of the city and filed as required by law. After these tax sales, and before the expiration of the two-year period for redemption of the lots fixed by our Constitution and statutes, appellee's mortgage on the lot involved was foreclosedin pais, at which sale he became the purchaser, receiving a deed from the trustee. The appellee thereby became the true owner of the lot, subject to the rights of the appellant as purchaser thereof at said tax sales.

Within the two-year period provided by law for redemption of lands from tax sales, the appellee undertook to redeem the lot involved. Within that time he paid to the chancery clerk of Lincoln county and to the city clerk of Brookhaven one-half of the amount necessary to redeem both lots from the tax sales. Appellee, conceiving that the lot owned by him was not more than one-half of the real value of the two lots, induced those officers to accept one-half of the amount necessary to redeem both. After such attempted redemption, appellee was informed that appellant was claiming that the lot involved had not been legally redeemed. Thereupon appellee filed his bill in this cause, setting out, among other things, the facts above stated, and in addition averred his readiness and willingness to pay whatever amount was just and equitable, if the amount already paid was insufficient, to redeem the lot owned by him, offering with his bill to pay the same. He further alleged in his bill that before the redemption period expired he had approached appellant with a view of making a just and reasonable settlement with him as to the amount he should pay for the redemption of the lot, and that appellee insisted that one lot could not be redeemed without both being redeemed.

On the filing of appellee's bill, the chancery clerk, as shown by his docket entry, issued summons thereon for appellant. This was done on the day the bill was filed. The summons was not served on appellant. There is no evidence in the record that the chancery clerk, or any one else, ever delivered the summons to the sheriff for service. Later, and after the expiration of the two-year period for the redemption of the lot, appellee's attorney discovered that the summons issued had not been served on appellant, and had been misplaced and could not be found; whereupon appellee's attorney had an alias summons issued for appellant, which was duly served.

Where property owned by two or more persons is subject to a common lien or charge, the jurisdiction of a court of equity to apportion between the owners, according to their respective rights, the burden of such a charge, is of ancient origin. The exercise of such jurisdiction is so well established by the authorities that the cases supporting it are almost innumerable.

Appellee's lot was burdened with a charge, viz. the amount necessary to redeem it from the tax sales. The question of fact was what would be a just and equitable proportion of the amount necessary to redeem both lots should be paid by appellee. Appellant contends that under the law appellee was due to pay the amount necessary to redeem both lots in order to redeem his own. The state, county, and municipality were not concerned. They had received the taxes due them in the purchase price both lots brought at the tax sales. It was a question, therefore, alone between appellant and appellee. We have no hesitation in holding, under these facts, that appellee had a right to invoke the jurisdiction of a court of equity. If he had not, he was without a remedy, although his right was clear. Certainly he was under no obligation, legal or equitable, as between him and appellant, to redeem for appellant the other lot bought by appellant at the tax sale.

Appellant contends, however, that appellee was barred from redemption through the chancery court, because his bill to redeem is to be treated as having been brought after the expiration of the redemption period of two years; that, although the bill was filed before the expiration of the redemption period, summons thereon was not served on appellant until after the expiration of that period. Furthermore, appellant contends that the filing of the bill did not stop the statute of limitation of two years provided for the redemption of lands from tax sales, even though it was filed and summons thereon was served within that time.

The limitation of two years for the redemption of lands from tax sales is simply a statute of limitation. Where the purchaser at a tax sale, as is true in this case, is a person, and not the state, or any of its political subdivisions, the right to redeem from such sale is a private right. Only the purchaser and the owner of the land are concerned. Neither the state nor any of its political subdivisions has any interest therein. We are unable to see why the statute should stand on a footing different from any other statute of limitation, so far as its running being stopped by action begun within the period of limitation.

Was the suit begun before the expiration of the redemption period? The bill was filed within that period and process asked for, and the clerk's docket entries show it was issued on the day the bill was filed. That was all that was required of appellee. Except by a legal proceeding for the purpose, he could neither force the clerk to issue the summons nor force the sheriff to execute it. The filing of the bill, with request for summons (which request is to be understood as having been made, if the contrary is not expressed), is such a commencement of a suit in the chancery court as to stop the running of the statute of limitation. Bacon v. Gardner, 23 Miss. 60.

Appellee's bill having charged that the amount paid by him to redeem the lot from the tax sales was more than its just proportion of the amount necessary to redeem both lots, and the appellant having failed to deny that allegation, it follows that the sums paid by the appellee to redeem the lot were sufficient for that purpose. The right result was reached by the trial court, and the decree is therefore affirmed.

Affirmed.