Dingey v. Paxton

60 Miss. 1038

• Court: Mississippi Supreme Court
• Decided: April 15, 1883
• Status: Published

Opinion

Cooper, J.,

delivered the opinion of the court.

The possession of the locus in quo by the ancestor of the plaintiffs under claim of title, is prima facie evidence of a seisin in fee, and is sufficient to enable them to recover against a mere intruder or one claiming under a title shown to be void. Epsey v. Lane, 2 Serg. & R. 53 ; Jackson v. Murray, 5 Cow. 200; Smith v. Lorillard, 10 Johns. 338; Jackson v. Hargen, 2 Johns. 22 ; Weidman v. Hubbell, 1 Cow. 613 ; Lum v. Reed, 53 Miss. 72; Hicks v. Steigleman, 49 Miss. 377 ; Kerr v. Farish, 52 Miss. 101; Johnson v. Futch, 51 Miss. 73.

The lands on the original assessment-rolls were listed to the State, and described as one hundred and forty-three acres in the northeast quarter of section 24, township 17, range 7 west; on the copy of the roll in the hands of the collector, the words “ unknown owner” had been erased and the name of the State inserted in lieu thereof as owner. The sale for taxes was made on the 10th day of May, 1875, under the provisions of the act known as the “ Abatement Act,” approved March 1, 1875.

It does not appear, otherwise than by the fact that the lands on the original rolls were listed to the State, that they belonged to that class of lands which, on the first day of March, 1875, were “ held or claimed by the State ” under tax-sales for previous years, which lands alone were subject to a sale under the provisions of the acts of that date. This was insufficient evidence of the fact of sneli previous sale. That such a sale had 'been made could only haye been proven by the production of the deed from the collector, if the sale was made prior to the adoption of the Code of 1871, or by the introduction in evidence of the sale-list, if made subsequent to that date. Vaughn v. Swayzie, 56 Miss. 704; Weathersby v. Thoma, 57 Miss. 296 ; French v. Ladd, 57 Miss. 678.

The assessment was void for uncertainty in the description of the land. It was impossible to say which one hundred and forty-three acres of the one hundred and sixty acres contained in the subdivision was delinquent. Bowens v. Andrews, 52 Miss. 596.

As it has not been shown that the lands were subject to sale under the Abatement Act, it was not governed by the provisions thereof, and a sale on the 10th day of May was void. Gamble v. Witty, 55 Miss. 26.

It is said, however, that, admitting that the sale was void, the title of the defendant had become absolute by virtue of the provisions of an act approved April 11, 1876, entitled “ An act to abolish the office of liquidating levee commissioner, and to provide for the redemption of lands in the liquidating levee district, and for other purposes.”

By the first section of this act, the office of liquidating levee commissioner was abolished, and by the second, third, fourth and fifth sections, the books pertaining to said office were directed to be deposited with the auditor and treasurer of the State, and provision was made for transferring to said officers all property belonging to said levee district, and for determining wbat claims against the district should be recognized and discharged by said officers.

Sections 6, 7, 8 and 13 of said act are as follows : —

“ Section 6. All lands lying within the levee district, which have been heretofore struck off or sold to the State, or Liquidating Levee Board, or commissioner thereof, or to the levee boards of either district, number one or number two, under the provisions of any revenue law of this State, or of any levee law, and which are now held or claimed by the State, or by any one of said levee boards or commissioners, under any tax-sale or forfeiture, may be redeemed at any time prior to the first day of November, 1876, without payment of any interest, costs, or damages, at the office of the auditor of public accounts, by the payment, on the part of the owner, or any other person interested therein, in the liquidating levee bonds, scrip or surplusage certificates heretofore issued by the liquidating levee commissioners or commissioner, or which may hereafter be issued under the provisions of this act, of all State, county, school, levee, or other tax, dollar for dollar.” * * *

“ Section 7. After the first day of November, 1876, and before the first day of January, 1878, the auditor may sell and dispose of such lands to any person desiring to purchase the same, on the same terms as are provided for the redemption thereof, in the sixth section of this act.”-

“ Section 8. The auditor of public accounts shall include in one deed all the lands purchased by one person, and all ■deeds made by said auditor under the provisions of this act shall bq prima facie evidence of paramount title, and no suit or action shall be brought in any court of this State, to vacate or impeach any such deed, or to maintain any title or deed antagonistic thereto, unless the same shall be bought within one year next after the date of such deed, and after the expiration of one year after the date of such auditor’s deed, the same shall be held and deemed by all the courts of this State to be conclusive evidence of paramount title, and upon which actious of ejectment and all possessory actions may be maintained.”

“ Section 13. If any of the lands mentioned in this act shall not be redeemed or purchased as herein provided for, on or before the first day of January, 1878, no further time for redemption shall be allowed, and the title thereto shall be vested in the State of Mississippi, aud no action in law or equity shall be maintained in any court of this State, either against the State of Mississippi, or any grantee or donee from the State of Mississippi, for the recovery of any such lauds, * * * and there shall bé no exception in favor of minors or married women, as to any of the limitations provided in this act.”

By the third instruction given for the defendant, which was founded upon sect. 8, above quoted, the jury were told, “ If they believe from the evidence, that the land sued for was sold to the State, in May, 1875, and that on the 26th day of August, 1879, the State, through its auditor, sold said land to A. J. Paxton, and that he took possession of said land immediately under said deed, with the belief that this title was good, and that he has remained in possession of said land or any part thereof, then the jury must find for the defendant, unless they further believe from the evidence that this suit was brought by plaintiffs before one year from the date of said deed from the State.” By the fourth instruction for the defendant, based upon sect. 13 of said act of 1876, the jury were instructed: “If they believe from the evidence that the land sued for was sold to the State in 1875, for the taxes due for 1874, and that the same was not redeemed from the State on or before the first day of January, 1878, then the title of said land became vested in the State, and the plaintiff can not maintain this action, and the jury must find for the defendant.”

The third instruction should not have been given for the reason that as to all lauds which had been sold prior to the year 1876 to the State, and not to one of the levee boards or the commissioner thereof, the act of 1876 expired by its own limitation in so far as it authorized a sale of such lands by the auditor, on the 1st of January, 1878, which was long before the purchase of the land by the defendant. The object of the act in so far as it donated to the use of the levee district the delinquent taxes due to the State was accomplished when the proceeds realized by the redemption or sales of the lands between the date of its passage and the first day of January, 1878, were appropriated to the use of the levee districts. The State did not donate absolutely and unconditionally such proceeds whenever they should at any time thereafter be received, but limited its bounty to giving only the sums which should be so received on or before the first day of January, 1878. That this was the legislative intention is apparent from the fact that on March 1st, 1878 (Acts 1878, p. 241), another act was passed providing that all the lands mentioned in the act of 1876 “ which are now held by the State of Mississippi, may hereafter be sold and disposed of by the officers who by law may be authorized to sell and dispose of the same, upon the same terms and conditions as are named in sects. 6 and 7 of said act, except the taxes due the State and counties for the fiscal year in which said lands may be purchased, which may be paid in like manner as therein provided for the payment of the taxes of the years 1874 and 1875.”

As to all lands of the class to which the land in controversy belonged, the act of 1876 was inoperative after the first day of January, 1878, in so far as a sale thereof by the auditor was concerned. The act of 1878 provided what currency might be received in discharge of the taxes for which it was in default, and was a virtual enactment of sects. 6 and 7 of the act of 1876, but nothing was said in the latter act as to the effect of a conveyance by the auditor, that was declared by sect. 8 of the act of 1876, to which no reference was made in the last act. The form and effect of such conveyance would therefore be governed by the general law governing in sales of delinquent lands made by the auditor.*

We have extracted portions of the act of 1876 other than those contained in the eighth and thirteenth sections, to show that the Legislature was dealing with lands claimed under previous and completed tax-sales. There was to be no release of the title thus held, no new proceedings to acquire a new and independent one in event default was still made in the payment of the taxes for which the lands were claimed. The evident plan and purpose'was to permit the owners to redeem within a limited time and then to dispose of the land, if unredeemed, to any purchaser who would accept the title which the State had previously acquired, fortified and protected by the operation of the eighth and thirteenth sections of the act.

There is this marked difference between the scheme of the act now under consideration and that of the act of March 1, 1875, which was construed in the case of Cochran v. Baker, ante, p. 282, that while by this act the State proposed to sell laud owned or claimed by it at the date of the passage of the act, by the act of 1875 the title which the State held was released to the owner, all previous taxes were abated and the State proceeded anew to subject the lands as the property of its former owners to the payment of the taxes due.

There is no doubt of the legislative will as expressed in the act. The evident purpose was to secure the title claimed by the State against all attacks by the owner upon any ground, after the expiration of the time limited. The act has a twofold operation ; first, it prescribes a short periodof limitation, after which no suit shall be brought by the owner for the recovery of the property ; secondly, it gives to the conveyances under the tax-sales a conclusive effect as evidence, thereby cutting off all inquiry into the existence of irregularities or defects, and thus operates as a curative law.

After much thought and-extended examination of the authorities, we are constrained to declare, that viewed in either light, these provisions are in excess of legislative power, and violate those fundamental rights of property which are protected by that declaration in our bill of rights that “ no person shall be deprived of life, liberty, or property except by due process of law.”

Before the entry of the defendant upon the lands, the plaintiffs, by their tenant, were in actual occupancy of all the land which was susceptible of cultivation, and were in the constructive possession of the whole tract. The sale of the lands for the unpaid taxes of 1874 was insufficient, under well settled principles, to divest their title. By a proceeding in invitum the State had attempted to acquire title under its laws as then existing and had failed. By a subsequent law it provides, that notwithstanding such failure, the shadow of title thus acquired shall become the actual title unless attacked within a certain time. It is the expiration of time without regard to possession which is to transfer title from the owner and vest it in the State, or its vendee or donee. The power of the Legislature to prescribe within what reasonable time one having a mere right of action shall proceed is unquestionable; but there is a wide distinction between that legislation which requires one having a mere right to sue, to pursue the right speedily, and that which creates the necessity for suit by converting an estate in possession into a mere right of action, and then limits the time in which the suit may be brought. The mere designation of such an act as an act of limitation does not make it such, for it is in its nature more than that. Its operation is first to divest from the owner the constructive possession of his property and to invest it in another, and in favor of the possession thus transferred to put in operation a statute of limitations for its ultimate and complete protection. A complete title to land, according to Blackstone, consists of juris et sesince conjunctio; the possession, the right of possession and the right of property. One who is in the actual or constructive possession of his lands,, and who has the right of possession and of property, needs no action to enforce his rights. He is already in the enjoyment of all that the law can give him and cannot be disturbed in such enjoyment except by “ due course of law.” If possession and the right of possession and the right of property are each an element of title, by what right can the Legislature divest the one, if it is prohibited by the Constitution from interfering with the other? If it be said that the owner of vacant lands is only in possession thereof by a fiction of law, and that the Legislature may at any time destroy such fiction, the reply is, that this has not been done or attempted to be done by the act under consideration ; the fiction remains, but under it the owner is placed out of, and a stranger is placed in, possession. It is apparent that the effort is to do indirectly that which may not be directly done, to divest title by a mere legislative decree.

In some of the States such acts have been upheld. Parish v. Stevens, 3 Serg. & R. 298 ; Waln v. Shearman, 7 Serg. & R. 357 ; Burd v. Patterson, 22 Pa. St. 219 ; Stewart v. Trevor, 56 Pa. St. 385 ; Rogers v. Johnson, 67 Pa. St. 48 ; Johnston v. Johnston, 70 Pa. St. 164; Newland v. Marsh, 19 Ill. 376 ; Gunnison v. Hoehne, 18 Miss. 282 ; Lawrence v. Kinney, 32 Miss. 281; Eldrop v. Kuehle, 27 Iowa, 160. In others they have been declared invalid. Jeffrey v. Brokaw, 35 Iowa, 505 ; Groesbecke v. Serley, 13 Mich. 329 ; Baker v. Kelly, 11 Minn. 480.

It is difficult to deduce from the authorities any clear line defining the bounds of legislative power in the enactment of retrospective statutes. Judge Cooley in his valuable work on Constitutional Limitations, says “ it is difficult to lay down a comprehensive rule which the authorities will justify,” but from an examination of the cases he reaches the conclusion, “ that a party has no vested right in a defence based upon an informality not affecting his substantial equities,” and, therefore that the Legislature may, by a retrospective law, prevent a reliance upon such defences. Cooley’s Const. Lim. 370. In his work on Taxation, p. 229, the same author says : “The general rule has been often declared, that the Legislature may validate, retrospectively, the proceedings which they might have authorized in advance. Therefore, if any directions of the statute fail of observance, which are not so far of the essence of the thing to be done, that they must be provided for in any statute on the subject, the Legislature may retrospectively cure the defect.” Following which statement certain exceptions are noted.

In the recent case of Foster v. Foster, 129 Mass. 559, a large number of cases upon the subject are classified, and they are distinguished from the case then under consideration by the court. It would too greatly extend the length of this opinion to reproduce that classification here. We note, however, other cases going further, as it seems to us, in upholding retrospective legislation than many of the cases noticed in that opinion. In Beach v. Walker, 6 Conn. 190 ; Booth v. Booth, 7 Conn. 350, and in other cases in the same State, it was decided that where a sheriff, in making a sale of lands for the satisfaction of a judgment, had included in his fee-bill fees not allowed by law, which action on his part under the then existing law made void the sale, it was within the power of the Legislature to give validity to such a sale by a retrospective law. In these cases the law was upheld, th.ough it was admitted that it divested a vested right, because the court thought the fees charged were equitably though not legally due.

In Lane v. Nelson, 79 Penn. 407, the broad ground is taken, that the Legislature may divest vested rights, provided it is not done by a legislative exercise of judicial functions. In Lily v. Underwood, 10 Serg. & R., it was held within the legislative power to give validity to an irregular judgment; in Blakely v. The Bank of NewCastle, 17 Serg. & R. 64, an act was sustained which validated pending suits.

On the contrary, it has, we believe, been universally held that where a defendant had become entitled to the protection of a defence arising under a Statute of Limitations, it is not competent for the Legislature to give an action for the enforcement of the demand, because such legislation would be an interference with the vested rights of the defendant. If it is the equity of the defence which protects it from legislative action, and if the want of equity leaves it to be dealt with at the legislative will, it would seem that it should be unquestionably within the legislative power to give a new remedy for the collection of a debt confessed^ due, and from subjection to which the defendant is only protected by a presumption of law.

We deem it unnecessary to examine at length, in this opinion, the authorities on the subject. It is apparent that in some of the States a much broader power is conceded to the legis-tive department than in others. The limits of this power are at best uncertain, and, we think, should only be defined as occasion shall require. It is sufficient for the present for us to say that the act under consideration, in so far as it attempts to validate a tax-title w'hich was void under the law as it existed at the time of its enactment, is violative of our Constitution and void. The Legislature may declare what the law shall be for the future ; in some cases it may declare what the law has been for' the past, but when the effect of such legislation is to transfer property without the assent of the owner, and vest it in another, it offends not only against natural justice, but against that clause in our Constitution, by which the citizen is protected against loss of property, except by due process of law. Foster v. Foster, 129 Mass. 559; Orton v. Noonan, 25 Wis. 672.

What is due process of law in proceedings for the collection of taxes is left by our Constitution largely to the legislative discretion. The machinery maybe simple and the proceeding-summary, but it must be a proceeding which is to be, and not which has been, taken. The citizen must have an opportunity to comply with the requirements of the law, and the State, and not the citizen, must be the actor. If, because of the negligence of its agents, the State shall fail to divest the citizen of his title by a sale for taxes, it may begin anew and collect the amount to whicli it is entitled ; but having proceeded and failed, it cannot, by, a mere legislative declaration, accomplish what it failed to do by the proceedings which it had provided.

In Power v. Penny, 59, Miss., we failed to note the fact that the effect of the statute there construed was to divest the estate of the tax-payer, and applied a principle, proper under certain circumstances, to a case which we now think it should not have been applied. The rule there announced being one of constitutional power, cannot be repealed by legislative action, and to cure the error into which we fell, we take this early opportunity of overruling that case.

Judgment reversed.

Campbell, C. J., dissented, holding the view announced in Power v. Penny, 59 Miss.