Darrington v. Rose

90 So. 632, 128 Miss. 16

• Court: Mississippi Supreme Court
• Decided: October 15, 1921
• Docket: No. 22298
• Status: Published

Opinion

Anderson, J.,

delivered the opinion of the court.

Appellant, John Barrington, filed his bill in the chancery court of Yazoo county against appellees, Joe Rose, Carrie Bassett, Jacob Bose, and Milton Cannon, for the purpose of having confirmed a tax title claimed by appellant to the northwest quarter of lot 8, Pugh’s Square, and the southwest quarter of said lot 8, of said square, in Yazoo City. Appellee Jose Bose claimed to be the owner of the said southwest quarter, and the appellees Jacob Bose and Milton Cannon claimed to be the owners of the said northwest quarter. Appellant claims title to both lots by virtue of tax sale of April 2, 1917; the two-year period for the redemption of same having expired before the bill in this case was filed. There was a final decree denying the prayer of appellant’s bill as to the southwest quarter of said'lot, from which appellant appeals to this court, and granting the prayer of his bill as to the said northwest quarter, from which said appellees Jacob Bose and Milton Cannon prosecute a cross-appeal. The case was tried on bill, answer, record and agreed evidence, and oral testimony of the tax collector who made the tax sales in question, and there is no real dispute as to any material fact.

We will consider, first, the question involved in the appeal of the cross-appellants, Jacob Bose and Milton Cannon, who claim title to the northwest quarter of said lot, appellant’s tax title to which was confirmed by the decree appealed from. Appellant’s tax deed to this lot is assailed on one ground alone, and that is that the tax assessor failed to comply with the statute in publishing the notice to taxpayers required by section 4303, Code of 1906 (Hemingway’s Code, section 6937), which provides in substance that, when the tax assessor returns and files the assessment rolls in the office' of the clerk, he shall give notice thereof, as well as the date of the meeting of the board to consider the same, by publication in some newspaper published in the county, etc., which — “shall be notice to all persons of the fact, and of the contents of the roll or rolls so filed; and all persons shall be held to have notice of the time within which to file objections to assessments, and of the time when the board of supervisors will hear the same, and of its power to raise assessments thereat.”

The alleged failure to comply with tbe statute consisted in this: That the notice as published failed to state the date of the filing of the rolls with the clerk;.it did state, however, that the rolls were on file with the clerk in this language:

“I have this day filed with the clerk of the board of supervisors of said county the land and personál rolls of said county for the year 1915.”

And down at the left-hand corner of this notice, as first published, was the date “August 2, 1915;” in the second publication there was no date in the place named, nor elsewhere in the notice; in the third publication the date “August 2, 1915,” appeared down in the left-hand corner; and the same is true of the fourth publication of the notice. It is argaied that each publication of this notice should have informed the taxpayers of the date of the filing of the assessment rolls, Avhich was not done. The statute contains no such requirement. It does require that the notice shall recite that the assessment rolls have been filed with the clerk of the board of supervisors, but there is nothing in the statute requiring that the notice shall set out the date'of their filing. The notice in question given by the tax assessor, published in four issues of the paper, from August 6th to August 27th, inclusive, plainly recited that the assessment rolls were at the time of each publication thereof on file with the clerk of the board of supervisors. This is all that was necessary. It was wholly immaterial to the taxpayers whether they were filed one day or three days or more before the first publication of the notice. We therefore conclude that the court below committed no error in confirming the tax title of the appellant, Darring-ton, as to the northwest quarter of said lot.

And the facts and circumstances attending the tax sale and purchase thereunder by appellant of the other lot, the said southwest quarter being exactly the same as those pertaining to the sale and purchase of said northwest quarter, the same result must follow, unless the appellee, 'Joe Eose, had such ownership or interest therein as entitled him to redeem the same, as his next friend offered to do for him in his answer filed in this cause; for so far as he is concerned the time for redemption had not expired, because lie was at the time of said tax sale, and has been continuously since, a non compos mentis; therefore under our statute (section 4B88, Code of 1906; Hemingway’s Code, section 6972) he would have two years after attaining sanity within which to redeem. The question, then, is whether lie had such an interest in the land as entitled him to redeem. Both of the lots in question were owned until his death in 1912 by Wash Rose, the father of the appellees Jacob Rose, Joe Rose, and Carine Bassett, and the grandfather of the appellee Milton Cannon, who left a will by which, as the agreed facts show, he intended to devise to appellees Jacob Rose and Milton Cannon the said northwest quarter, and to the appellees Joe Rose and Carrie Bassett said southwest quarter; but the language of the will unexplained, as applied to the facts— the property he owned on North street — resulted in both of the lots in question being devised to appellees, Jacob Rose and Milton Cannon. However, in 1912, soon after the death of said Wash Rose, the said beneficiaries under his will got together, and to carry out his well-known intention they agreed verbally that the appellees Jacob Rose and Milton Cannon should take and own under the will said northwest quarter, and appellees Joe Rose and Carrie Bassett should take possession and own the said southwest quarter .(there being a residence on each of said lots), which was accordingly done, and such possession and claim of ownership have continued up to the present time. The agreed facts show that thereupon the appellee Carrie Bassett verbally turned over to appellee Joe Rose, on account of his affliction, the rents and use of said southwest quarter for his support and maintenance during his lifetime, since which time said appellee Joe Rose has received the entire rents and income from said lot. Was this such an interest -in said lot as entitled said Joe Rose to redeem it from said tax sale?

Section 79 of the Constitution secures the right of redemption from tax sales of lands for taxes “in favor of owners and persons interested in such real estate.” (Italics ours.) Section 4330, Code of 1906 (Hemingway’s Code/ section 6964), provides for the redemption of lands sold the state for taxes by “the owner or any person interested.” (Italics ours.) And section 4338, Code of 1906 (section 6972, Hemingway’s Code), provides for the redemption of lands sold individuals for taxes by “the owner of the land or any person for him.” (Italics ours.) It will be noted that there is some variation in the language used in the constitutional provision and the statutes referred to as to who is entitled to redeem; but there is no difference in meaning — one is as broad as the other — and it is hard to conceive how broader language could have been used. Therefore by the plain language of the Constitution and the statutes of this state any owner or person interested in real estate has the right to redeem from a sale for its taxes.

It was held in Bonds v. Greer, 56 Miss. 710, that the statute secured to the owner or other person interested the right to redeem, and “if it be doubtful whether the right is secured .to the owner, or other person interested in the lands sold for taxes, to redeem them, the doubt should he resolved itl favor of the right.” (Italics ours.) We are referred to no other case in this state by counsel, and we know of none touching on this question; however, it appears that the authorities elsewhere are practically unanimous in holding that statutes allowing the right of redemption from tax sales are to be liberally and benignly construed in favor of the right to redeem. It has been held that the right given to the owner to redeem is not confined to the owner of the fee, but any person who has any interest in the land may redeem; that any right which in law or equity amount to the ownership of land, any right of entry on it, or to its possession or enjoyment, gives the owner thereof the right of redemption. Among the reasons given by some of the courts for such a liberal construction of statutes of this character is that the purchaser at a tax sale suffers no loss; he buys with full knowledge that his title cannot be absolute until the time for redemption expires, and that, if his title is defeated by redemption, it reverts to the original owner; and if it is redeemed, he is fully .reimbursed for his outlay, with interest. 26 R. C. L. 387, 430; Du Bois v. Hepbourn, 10 Pet. 1, 9 L. Ed. 325; 37 Cyc. 1383; Kerr v. Washburn, 56 Wis. 303, 14 N. W. 189. In Du Bois v. Hepburn, supra, the supreme court, in considering this question said that "any person who has any interest in lands sold for taxes, is the owner thereof for the purposes of redemption(Italics ours.)

We are of the opinion that, by virtue of the will of the father of appellee Joe Rose, and the construction put upon it by the other devisees thereunder, whether they were authorized by law to so construe it or not, and by virtue of the fact that the appellee Carrie Bassett had turned over to the appellee, Joe Rose, for his life, the use and income of her one-half undivided interest of said lot, whether that agreement was binding on’her or not, that under the law said appellee Joe Rose had such interest or title in the entire lot as gave him the right to redeem. The outside world is not concerned in whether the agreements referred to between appellees in reference to the ownership of these lots are binding upon them or not; they are certainly binding upon all others having no interest in the property. When one, claiming to be the owner of land sold for its taxes, offers to redeem, the officer before whom the redemption is sought to be made is not required to try the title of such alleged owner; nor will the court, in a proceeding in which is involved the right of the alleged owner to redeem, stop 'to see whether he has a good title as against the world. If at the time of th,e sale for taxes, and at the time he offers to redeem, he owns the land, or such an interest therein as gives him the right to the exclusive use of its fruits, he has the right to redeem, pro-. vided, of course, such right is not barred by limitation.

These views in no wise conflict with Wilson v. Sykes, 67 Miss. 617, 7 So. 492. That was a case where one tenant in common, a minor, sought to redeem, not alone his undivided interest in the land, but that of the other tenants, who were adults, and barred from redemption. The court held that the infant could only redeem his own interest. The case at b.ar is very different from that case. The same principle would have been involved in that case as here, if at the time of the tax sale, and at the time of the offer of the infant cotenant to redeem, the latter, by agreement of his cotenants, had been in' possession of the entire land, with the right to the use of the rents and profits during his lifetime.

Affirmed on direct and cross appeal.