James v. Tax Investment Co.

40 So. 2d 539, 206 Miss. 605, 1949 Miss. LEXIS 287

• Court: Mississippi Supreme Court
• Decided: May 9, 1949
• Status: Published

Opinions

Hall, J.

Appellants brought suit in chancery seeking cancellation of a tax deed to Tax Investment Company, a deed from that company to Elisha Shaffer, and a deed of trust from Elisha Shaffer to Tax Investment Company, and from a decree dismissing their bill and denying the relief sought they have appealed to this court.

The suit involves one lot in the City of Cleveland upon which a dwelling house is situated. The bill deraigns title from the United States down to the appellants and alleges a tax sale by the Sheriff and Tax Collector of Bolivar County to Tax Investment Company on April 3, 1944, for 1943 ad valorem taxes, and a further tax sale on April 2, 1945, to Sam Hyman for 1944 taxes. The bill charges that Hattie James went to the office of the Sheriff and Tax Collector of said county in April, 1945, and stated to a deputy that she desired to pay the taxes on said lot, and the deputy advised her that the lot had sold for taxes and that she would have to go to the office of the Chancery Clerk to redeem it, and that she thereupon did go to the Chancery Clerk’s Office and requested that she be permitted to pay the back taxes on the property and she was requested to return on a subsequent date, which she did, with the result that on April 16,1945, she was advised that the amount necessary to redeem the property was $16.34, which amount she then paid; that she had upon her person sufficient money with which to pay all taxes and redeem said property from all tax sales theretofore made, and that she was ready, willing and anxious so to do, and that she did everything possible on her part to effect a redemption thereof from said tax sales; that these efforts on her part were sufficient to effect such redemption and took away from the taxing authorities the power to convey the title to said lot under the first tax sale.

The hill charged that on April 9, 1946, the Chancery Clerk executed a tax deed, for said lot to Tax Investment Company pursuant to the tax sale of April 3, 1944, that on April 26, 1946, said company executed a deed therefor to Elisha Shaffer and took a deed of trust back from him securing an indebtedness of $1350.00, and it charged that these conveyances are void and should be cancelled.

The appellees answered the bill and admitted the deraignment of title, the tax sales, and the deeds and deed of trust above mentioned, but denied that Hattie James sought to redeem the lot from any tax sale except the one held on April 2, 1945, for the 1944 taxes, and charged in this connection that Hattie James was quite indignant and impertinent to the clerk because the property had sold the one time, and that no word was said about any previous sales.

A majority of the Court is of the opinion that the decree of the Chancellor is so manifestly erroneous that the same should not be permitted to stand, and, therefore, we shall detail at some length the 'picture disclosed by the evidence.

"Will and Hattie James are Negroes and are husband and wife. He went to the fourth grade in school and she went to the fifth grade. The property in question is the first and only home they ever owned. They bought it on credit, but had just completed paying it out of debt at about the time of the first tax sale. They had a son who was in the army and in 1943 they rented out their home and went temporarily to Chicago so that they could be near their son who was then stationed at that place. Will and Hattie both obtained gainful employment in Chicago and remained in this employment after their son went overseas because they were making more money than they could make in Cleveland, Mississippi.

Hattie left Chicago and came to Cleveland, arriving there on Friday, March 30, 1945. On the following Monday which was April 2 she went to the office of the Sheriff and Tax Collector of Bolivar County at about 1 P. M. and made inquiry of a deputy about the taxes on this property, and the deputy told her that it had sold for taxes and requested her to return later. She did return on or about April 7th, and the deputy told her to go to the Chancery Clerk’s office. On or about the following Tuesday, which was April 10, 1945, she went to the Chancery Clerk’s office and asked one of the deputies if she could pay Will and Hattie James’ taxes and this deputy looked at some records and told her she did not have the record of it and requested her to return on the following Saturday. She returned to the Chancery Clerk’s office on the following Monday and again made known to the deputy that she desired to pay Will and Hattie James’ taxes and the deputy told her she did not have a record of it.

Having thus made two trips to the Sheriff and Tax Collector’s office and two trips to the Chancery Clerk’s office, and having made no progress whatever toward settling the taxes, Hattie then went on Sunday, April 15, to see Mrs. Elizabeth Shands, wife of a prominent attorney at law in Cleveland, for whom she had worked for a period of nine years before going to Chicago, and sought the assistance of Mrs. Shands in inducing the officials of the county to let her pay what she owed so that she could return to Chicago. Mrs. Shands told Hattie that she had a friend in the Chancery Clerk’s office and that she would telephone this friend and make the request that they permit Hattie to pay what she owed. Mrs. Shands did telephone one of the deputies on the next day and made this request, and Hattie returned to the Chancery Clerk’s office on April 16, and saw this deputy and told her that she wanted to pay all of Will and Hattie James’ taxes, and this deputy walked out of the room and came back with a piece of paper and told her that the amount was sixteen dollars and some cents, and Hattie then told the deputy that she wanted to pay it in full, and the deputy told her that this was the correct amount, so she paid it, and was handed an instrument which released the property only from the tax sale of April 2, 1945, for 1944 taxes. This instrument was introduced in evidence.

Hattie was not satisfied with the amount she had paid, being afraid that there was something more still due, and she accordingly went back to the home of Mrs. Shands, and told Mrs. Shands that she was afraid she had not paid enough, and thereupon Mrs. Shands telephoned the Chancery Clerk’s office and reported this to the deputy, and, quoting the testimony of Mrs. Shands, ‘ ‘ the response was that she had paid the amount that the tax roll called for, or some words to that effect. . . .

“Q. And substantially what information did you elicit from that?; A. Well, it thoroughly satisfied me with the answer that she had paid all she owed.

“Q. Paid all she owed; whatever the words were that was the meaning that you got out of it? A. Yes, sir.

“Q. Then did you have any further talk with Hattie James? A. I just told her she might as well go on home if she was ready; that this was taken care of; That is the way I understood it. . . .'

“Q. As to the words used by Mrs. Tatum you would not say? A. Well, I couldn’t give it verbatim; it has been too long ago. Whatever she said satisfied me that Hattie did not owe anything else.”

The testimony shows without dispute that Hattie James had $375.00 in cash with her when she arrived in Cleveland; that she expended $135.00 in having the house painted, and took out a five year insurance policy on the house, paying $35.00 therefor, and that she had approximately $200.00 in cash upon her person when she undertook to redeem her property from the tax sales. Hattie testified that she was trying to pay “everything that was against the house, I was willing and ready to pay that, and asked to pay it. ” ,

It was shown without dispute that the house was rented to Elisha Shaffer and he paid rent regularly to Will and Hattie James until after maturity of the first tax sale, and remained in possession of the property after purchasing it from Tax Investment Company. It was also shown without dispute that neither Will nor Hattie James ever received any notice of the first tax sale, though such a notice was issued by the clerk for Will James and placed with the sheriff and returned with a notation that he could not be found in the county.

The deputy clerk, Mrs. Tatum, testified for appellees on direct examination. "Q. Do you remember when she came to your office in 1945 in reference to some taxes? A. Yes, sir. Q. What did she say when she came in there, Mrs. Tatum? A. Well, she said, as best I remember — I don’t remember exactly what she said — she said she came in to pay some taxes. ’ ’ After this preliminary admission of lack of memory, Mrs. Tatum testified positively on direct examination that Hattie said she wanted to pay the 1944 taxes and that she said nothing about paying any other taxes and made no request that the records be checked for any prior tax sale. If the testimony of this witness had stopped at this point we might be inclined to feel that there was something on which to uphold the decree of the lower court, but on cross-examination this witness said that she has a custom of looking back for other tax sales when requested to do so, and that since she did not look back for the record of the sale in 1944 she assumes that she was not asked to do so; she also said that “I waited on her, — I talked with her the first time — I don’t know whether I talked with her the second time — I helped in the transaction — I know my notation is on the back, but whether or- not I actually talked to her the second time, I am not sure. ...

“Q. You don’t remember what Hattie James said when she came in? A. What do you mean, what she said about what?

“Q. About her taxes? A. Well, she said she came to pay her taxes, I assume she let it be known that she came to pay her taxes.

“Q. And you assumed from that that she came to pay the 1944 taxes? A. She didn’t say she came to pay any particular years.”

Mrs. Tatum admitted the first telephone conversation with Mrs. Shands, and did not deny the second one but said she had no recollection of it.

As indicative of the attitude of Mrs. Tatum toward Hattie James, she was asked whether she took offense at her attitude or her bearing or something, and she said “I didn’t take any personal offense at her. I just didn’t care to wait on her the second time.” She also said it was Hattie’s bearing that offended her, but she was unable to point out anything that caused the offense. It was shown by the testimony that on her last telephone call to the clerk’s office, Mrs. Shands was advised that Hattie had been offensive in some way, and she reported this to Hattie. It is also shown without dispute that upon her return to Chicago Hattie wrote a letter of apology to the deputies who had waited on her and told them iii effect that if she had done or said anything that gave them offense that she was sorry and wanted forgiveness.

The other deputy clerk, Mrs. Wiggins,testified for appellees that she has no recollection whatever about any conversation with Hattie, but that the usual custom in the clerk’s office was to look back for prior tax sales if requested to do so.

This is not a case where a party claims to have attempted to pay taxes or to redeem from a tax sale without corroborating proof. Here we have the testimony of a prominent white matron, who had no interest whatever ' in the matter and whose veracity is unquestioned, which supports the testimony of Hattie to the effect that she was making an effort to pay everything that she owed, and, in the light of this, we do not feel that the indefinite and uncertain testimony of the two deputies, who for some undisclosed reason took offense at Hattie’s attitude or bearing, is sufficient to support the decree in this case. Nor are we impressed with the argument so ably stressed by appellees that Hattie only requested to be permitted to pay her taxes and did not specifically request a redemption from the tax sales. Hardly anyone but a lawyer or a well-educated business man would know the technical difference between the two expressions, and we doubt not that this illiterate and uneducated Negro woman, with no business experience, would any more understand the meaning of a tax redemption as distinguished from the payment of taxes than she could explain Einstein’s theory of relativity.

It is argued that Hattie admitted in her testimony that she had sent the money to one Cleo Woods with which to pay her taxes for one or more of the prior years and that she thought that the 1943 taxes had been paid, but this does not alter the fact that the evidence in her behalf shows that she did everything within her power to pay everything that she owed on this land and that the appellees produced no substantial proof to contradict this. On this very same trip from Chicago to Cleveland she had the house painted and took out an insurance policy on it, and all of this is wholly inconsistent with the idea that she wanted to redeem the property only from the sale for 1944 taxes.

This case is no different in principal from McClain v. Meletio, 166 Miss 1, 147 So. 878; Kelly v. Coker, 197 Miss. 131, 19 So (2d) 519; Beauchamp v. McLauchlin, 200 Miss. 83, 25 So. (2d) 771; McNatt v. Hyman, Miss. 38 So. (2d) 107, not yet reported in State Reports; and Brannon v. Lyon, 86 Miss. 401, 38 So. 609. In those cases it was held that statutes allowing land to be redeemed from tax sales are to be liberally construed in favor of the person seeking to redeem, and that an owner’s offer to redeem from any and all tax sales within the redemption period, with sufficient money upon his person with which tq effect such redemption includes every form of taxes and takes away from the taxing authorities the power to convey title to any one else pursuant to tax sales from which no redemption had actually been accomplished by reason of neglect or otherwise of the custodian of the tax sale records.

It is true that in some of the cited cases there was no contradiction of the proof supporting the offer to redeem, hut we hold that in the case at bar the proof in contradiction of the offer was so vague, indefinite, uncertain and unsubstantial that the same did not amount to a substantial conflict in the evidence sufficient to uphold the decree and that consequently the decree of the learned Chancellor is manifestly wrong and should be reversed.

Appellees rely principally on the cases of Little v. Gilmore-Puckett Lumber Co., Miss., 23 So. (2d) 918, not reported in the State Reports, and Pierce v. Ford, 199 Miss. 168, 24 So. (2d) 342, hut we are of the opinion that neither of these cases is in point. In the Little case an application was made to the Chancery Clerk for a statement of the taxes due, hut there was no evidence whatever as to the nature and extent of the inquiry and the land was redeemed from only a part of the unmatured tax sales, leaving one sale unredeemed; before maturity of that sale the statutory notice was given by registered mail to the applicant of the imminence of maturity of the sale and the applicant signed an acknowledgement of the receipt of such notice and then neglected to redeem the land. In the Pierce case the party who offered to redeem was not positive in his testimony as to the extent of the offer nor as to whom the purported offer was made; his attorney was present at the time and was not offered as a corroborating witness nor was there any other corroboration; the tax collector and his deputy both denied recollection of any such request and testified as to their unvarying custom of not advising that there was no tax sale without first examining the records, which examination would unquestionably have revealed the tax sale, and upon this they denied that there had been any offer to redeem. The Chancellor held that there had been no redemption and this Court affirmed his decree. A mere statement shows that the two cases last mentioned are in nowise in point here. In neither case was the applicant corroborated by any other evidence.- In both cases the testimony of the applicant as to an offer to redeem was vague, uncertain and indefinite, and in one of the cases the applicant actually received notice of the impending maturity of the tax sale and took no steps to redeem therefrom. Such is not the situation now presented.

It is also argued that Elisha Shaffer is an innocent purchaser for value without notice of any infirmities in his title. The record shows that when he purchased from Tax Investment Company he made a cash payment of $250.00 and gave a deed of trust to secure the remaining sum of $1350.00 due on the purchase price; he was a tenant of Will and Hattie James at the time. It is the settled law of this state that the purchaser of a tax title is not an innocent purchaser for value, but takes title subject to all its infirmities. McNatt v. Hyman, Miss., 38 So. (2d) 107, not yet reported in State Reports; Roebuck v. Bailey, 176 Miss. 234, 166 So. 358; Perret v. Borries, 78 Miss. 934, 30 So. 59; 51 Am. Jur., Taxation, Sec. 1061. Shaffer, therefore, cannot take refuge in his claim of innocent purchaser.

The decree of the court below is accordingly reversed and judgment here entered for appellants sustaining the prayer of their bill, but the cause is remanded for the sole purpose of an accounting by the lower court as to the amount necessary to be paid by appellants to redeem from the sale for 1943 taxes as well as the amount to be paid by them to reimburse appellees for the taxes, if any, which they have subsequently paid on the land in suit, for which, of course, the appellees shall have a lien as their interests may appear.

Reversed and decree here for appellants and remanded for an accounting as to the amount of taxes due by appellants.