Price v. Harley ( 1926 )

^* Corpus Juris-Cyc. References: Constitutional Law, 12CJ, p. 1002, n. 19; p. 1003, n. 10, 11; p. 1055, n. 84. Contracts, 13CJ, p. 248, n. 16; p. 249, n. 19; p. 259, n. 22; p. 627, n. 33. Taxation, 37 Cyc, p. 1282, n. 30. Conflict of Laws as to Contracts, see 5 R.C.L., 936; 1 R.C.L. Supp., p. 1557. This is an appeal from a decree sustaining a demurrer to and dismissing an original bill of complaint wherein the complainant seeks the cancellation of a tax deed held by the defendant to land claimed by the complainant. The appeal is by the complainant, and the parties will be hereinafter designated as in the court below.

It appears from the bill that in 1921 Griffith, the then owner of the land in question, executed a deed of trust thereon to the complainant to secure a debt due him by Griffith, which deed of trust was foreclosed, and the land was bought in by the complainant in December, 1924. Griffith failed to pay the taxes due on the land for the year 1921, and in May, 1922, it was sold therefor under chapter 137, Laws of 1922, and purchased by the defendant. The complainant did not know of the sale of land for taxes, and was not notified thereof by the chancery clerk before the period of redemption expired.

When land is sold to an individual for the taxes due thereon, the tax collector is required to execute a deed to the purchaser thereto and deliver it to the chancery clerk, with whom it remains for two years, during which time "the owner of the land, or any persons for him, may redeem" it by paying the clerk, etc. Section 4388, Code of 1906 (Hemingway's Code, section 6972). The statute that was in force when the sale was made, and now, requires the chancery clerk to notify the owner of land of a sale thereof for taxes within ninety days, and not less than sixty days, prior to the expiration of the time for redemption, but the failure to give this notice does not affect the validity of the purchaser's deed. Section 2, chapter 241, Laws of 1922, which became effective on June 5, 1922, after the sale here in question was made provides for the giving of such notice by the chancery clerk to the holders of recorded liens on land sold for taxes; and further (section 3) that "a failure to give the notice to such lienors . . . shall render the tax title void as to such lienors."

The appellant's contention is that section 2 chapter 241, Laws of 1922, cannot be applied to a sale for taxes made prior to the time it became effective, for the reason that so to do would impair the obligation of the contract of sale.

"The obligation of a contract imports, for the most part, its binding force upon the obligor to perform the duty agreed on, according to the nature and effect of the contract. It relates to the performance rather than to a breach of the contract. The nature, construction, and effect of a contract are governed by the laws existing when and where it was made, or where it is, by its terms, to be performed; and, in this respect, the rights of the parties under the contract are beyond the legislative power. The remedy pertains to the modes of proceeding existing when and where the enforcement of the contract may be sought; and these, with certain restrictions and limitation, are subject to be modified and changed by the legislature." Coffman v. Bank ofKentucky, 40 Miss. 29. 90 Am. Dec. 311.

Under the statute in force, both before the sale here in question was made and now, the holder of a lien on land sold for taxes has the right to redeem it for the owner, and the provision of section 2, chapter 241, Laws of 1922, for notice to him of the sale is in aid of this right, and affects the performance of the contract. Such a statute, enacted after a sale for taxes is made, but before it becomes absolute, may be applied thereto, provided it imposes no undue burden on the purchaser, and does not annul the sale or deprive the purchaser of his right to a deed.Curtis v. Whitney, 13 Wal. 68, 20 L.Ed. 513; State v.Krahmer, 117 N.W. 780, 105 Minn. 422, 21 L.R.A. (N.S.) 157; 12 C.J. 1002.

The effect of section 2, chapter 241, Laws of 1922, if applied to the sale here in question, is to annul it by making the deed executed pursuant to the sale void because of the happening of a subsequent event over which the purchaser has no control. A statute which requires the purchaser at a tax sale to himself give notice thereof to the owner of the land before he can receive a deed to the land does not impair the obligation of the contract of sale, for the reason that the giving of the notice is entirely at the discretion of the purchaser, and imposes no burden on him. Curtis v. Whitney,supra; Tarpley v. Hamer, 9 Smedes M. 310. But here the notice required is not to be given by the purchaser at the tax sale, but by a public officer over whom he has no control. The supreme court of Florida, in Starks v. Sawyer, 47 So. 513,56 Fla. 596, and in Clark-Ray-Johnson v. Williford, 56 So. 938,62 Fla. 453, held a similar statute valid, but we are unable to agree with its conclusion thereon, and the statutes construed in the cases cited by it in support of its holding impose the duty of giving the notice of the tax sale on the purchaser and not on a third person over whom he has no control.

It follows from the foregoing views that section 2, chapter 241, Laws of 1922, cannot be applied to the sale here in question, for the reason that so to do would impair the obligation of the contract. The validity of the defendant's deed must be determined by the law in force at the time the sale was made.

Affirmed.