Simpson v. Interstate Cooperage Co.

Mayes, C. J.,

delivered the opinion of the court.

On the first Monday, the fourth day of March, 1907, the land in controversy was sold for taxes for the year 1906 and purchased by appellant. After the land was sold to appellant by the tax collector, the deed was filed in the office of the chancery clerk of the county, as required by section 4338 of the Code of 1906. As to -this feature of this case the controversy turns upon the question of whether or not the delinquent tax land should have been sold on the first Monday of March, as required by section 4328 of the Code of 1906, or whether the sale should have taken place on the first Monday of April,, the time at which section 4326 of the Code of 1906 requires the advertisement to state that the sale of delinquent tax land shall take place.

After this land was sold for delinquent taxes on the first Monday in March, 1907, and after the tax collector had filed the.deed in the office of the chancery clerk, as required by section 4338 of the Code of 1906, the courthouse, in which was the chancery clerk’s office, was destroyed by fire on September 4, 1908. At the time of this fire the tax deed in question was on file with the clerk in a vault in the chancery clerk’s office. After the fire temporary quarters were provided for the clerk’s office elsewhere by order o'f the board of supervisors; but the chancery clerk continued also to use the vault, and this particular deed was left in this vault with other records and papers of the chancery clerk’s office, all of which were in the actual custody of the clerk and on file in his office, within every intendment of section 4338 of the Code of 1906, where it remained for the full period of time required by the section. We do not deem it worth while to dwell on this feature of the case. The facts make it clear that the clerk continued the use of this vault as a part of his office, leaving on deposit there this and many other records, and had appellees applied to the clerk for the redemption of this land, or for inspection of this tax conveyance, at any time within the two years, they would have found this deed in his custody.

The actual sale of the land was made on the first Monday of March, as is required by section 4328 of the Code of 1906, and this section of the Code necessarily controls section 4326. Section 4326 of the Code of 1906 provides how lands shall be advertised for sale and the date on which the advertisement shall state that the lands shall be sold; but section 4328 provides the date when the sale shall take place, and further provides that “neither a failure to advertise nor error in an advertisement,” etc., shall invalidate the sale. The sale of this land was made at the time the law required. There is hopeless conflict between sections 4326 and 4328 of the Code. Section 4326 requires that “the tax collector shall advertise all land in his county on which the taxes have not been paid, or which is liable to sale for other taxes, for sale at the door of the courthouse of his county on the first Monday of April following,” while section 4328 requires that “on the first Monday of March, if tie taxes remain unpaid, the collector shall proceed to sell the land,” etc. The date of sale being fixed by statute, the advertisement of sale, in view of the fact that the sale is good without it, is of little practical value, beyond merely calling the attention of the public to those standing on the roll as delinquents, thus, perhaps, bringing notice to delinquents who have forgotten to pay their tax.

Section 4328 of the Code is necessarily controlling: for, if this were not true, the court would be compelled to hold that the failure to do that which the statute declares not to be essential to a valid sale would control section 4328, and make invalid a sale made under it for. the failure to do that which the statute says is not necessary in order to make a good sale. This confusion in the law has fortunately been eliminated by amendments of 1908 and 1910.

This case is reversed, and the bill dismissed.

Reversed and dismissed.