Judah v. Bros.

72 Miss. 616

• Court: Mississippi Supreme Court
• Decided: March 15, 1895
• Status: Published

Opinions

Woods, J.,

delivered the opinion of the court.

The evidence shows that the tax collector’s advertisement of the sale of all lands delinquent for taxes, including those involved in the present controversy, advised the public at large that the sale was to be made for cash, and that at the time of the sale the announcement was made that the sale was for cash. There was no agreement or understanding between the tax collector and the appellee that any credit should be given the latter by the former. In the language of the deposition of the tax collector, the lands were ‘‘ sold for cash. ’ ’ The tax collector, regarding the appellee as good, as he expresses his idea of solvency and reliability, did not stop the sale generally when the lands embraced in this suit were bid off by and knocked down to the appellee and execute a conveyance and collect the money on the instant, but, for his own convenience as well as that of the appellee, waited until the sales had been completed, when, three or four days after such completion of his sales, he received from him the amount of his bid. It fully appears, further, that this was his custom in making tax sales and collecting money from successful bidders. This conveyance from the collector to the appellee was by the former filed in the office of the chancery clerk before the middle of March, 1892, where it remained for more than twelve months, and until the period for redemption had expired, when, on March 13, 1893, the same was duly recorded in the deed books of that office. In October, 1893, the appellee exhibited his bill in the chancery court of Clay county, and prayed confirmation of his tax title. The appellant answered, and, amongst many defenses pleaded in his answer, denied that appellee paid the tax collector the amount of his bid for these lands, or any other sum, in cash, on the day of the sale of the lands.

We shall confine this opinion to the consideration of the question thus presented, believing the other defenses made in appellant’s answer without merit. Was, then, the sale void because the money was not paid, and the tax collector’s deed not executed on the very day the sale was made? The true answer to this question will be found by some consideration of our scheme of revenue laws, and particularly by construing § 527, code of 1880 (§ 3819, code 1892), which is a part of our system for raising revenue, and on which appellant relies strongly. Our system of taxation, as found in our laws, has for its one object the raising of revenue for the support of the government. Year by year and step by step our legislation has steadily advanced along the line of upholding sales for taxes, and validating titles resting on such sales, with the object in view of inducing individual purchases at tax sales, in order to the fuller collection of reve-' nue by preventing, so far as practicable, the state’s becoming the buyer at such sales. And even in those instances in which the state is compelled to purchase for the lack of any other bidder, the purchase is made to raise revenue by selling again as speedily as an individual purchaser for its title can be found, after the expiration of the period for redemption allowed to the delinquent owner and taxpayer. Of course, due regard must be paid to the rights of the landowner. Plis land must be subject to taxation, it must be assessed according to law, and the owner must be in default in payment of the taxes due thereon, and these things must all concur before his lands can be lawfully sold. This is well settled in this state, but it is also settled that the defaulter in payment of a legally imposed tax on his land is entitled to no favor, and cannot be heard successfully to complain of anything done, or omitted to be done, in the collection of the state’s revenues which does not injuriously affect him or his essential rights. All that pertains to fixing the charge on his land, as well as the time and place of the sale of it for nonpayment of taxes due on it, concern and affect him, and he may justly and successfully complain of any material disregard of law as to these matters. But, with the person who purchases at the sale, or with the precise day or hour when the bid made at the sale is paid, he has slight or no direct concern. If the sale, made necessary by the neglect or refusal of the delinquent taxpayer to discharge his duty to the state by paying into the treasury his proportionate part of the revenues required to carry on the government, is had at the proper time and place, and in the proper manner, and the money bid is seasonably paid to the appointed officer, and before he is required to file deeds to individual purchasers with the chancery clerks, by the first day of the month next following such sales and purchases, or to make settlements with the state for cash received by him on account of such sales, how is the defaulter interested in or affected by payment of a bid at the very instant of the fall of the auctioneer’s hammer? So far as he is concerned, it does not matter whether the cash be paid on the spot, or the next hour or the next week.

But it is urged upon us that § 527, code of 1880, declares an inflexible and unambiguous rule, when it says: “If the purchaser shall not immediately pay, . , the collector shall offer the land again, ’ ’ etc. What is the end to be attained ? What the purpose to be subserved by this section ? Clearly, not the preservation of the delinquent owner’s title nor the conservation of any interest of his. We see here the ever-present purpose of raising its revenues by the state by securing a second bidder, who can and will pay his bid if the first bidder has neither the ability nor the will to pay the bid which he has made. The declaration, in effect, is, if the state can secure a second bidder who will bid enough to make good the delinquency of the owner in nonpayment of his taxes, the first bidder may be released from compliance with the contract made by his bid; but if no second bidder can be found, the first bidder shall be compelled to pay his bid, and, that being-done, he shall have the title to land to which his bid entitles him. The object of the section is to make sure the getting of the revenue by subjecting the property to taxation as swiftly as may be done. It makes the collector master of the situation by giving him some simple and elementary instructions and directions for his guidance in the conduct of tax sales. He is informed that he may not accept every bid, and especially when made by one known to him to be irresponsible and untrustworthy, and thereby delay the collections of the public revenues ; but, if he demand payment on the spot and refusal is met, he shall at once offer the lands again for sale to other bidders. If the first bidder is known to the collector to be solvent and reliable, the sale of other lands need not be delayed by stopping to make and acknowledge and deliver a conveyance to this first bidder, and to receive the amount of his bid; but if the first bidder is of such capacity and character as to make the collector unwilling to rely on him, then the collector should stop the sale, demand the amount bid, and, on default in payment, again offer the land. The great object, the sole object, is to get in the taxes due. It is the interest of the ' public alone that was consulted in enactment of this section, .and the delinquent owner has no sort of concern in it. This must be so, for, in a certain contingency, the title to the land is to be put in the first bidder nolens volens. To our mind, moreover, it would seem illogical to hold void a sale which, in a given contingency, it is contemplated shall put title in the first bidder, as is provided in the last clause of this § 527. What possible object, furthermore, could be said to have been in legislative contemplation in § 531, code of 1880, in which the tax collector is given until April 1 following the salé beginning the first Monday in March, in which to file deeds made to individual purchasers at tax sales in the office of the chancery clerk, if the money was to be paid and deeds executed jpari passu with the sales themselves. In this latter case, no delay in filing the deeds until April 1 need have been afforded, for at the close of each day’s sales they would have been then perfectly ready for filing. Manifestly this delay of nearly a month was wisely provided for,, that ample time might be had by the collector for executing, acknowledging and delivering deeds, often very many in number, for receiving the money from purchasers, and for accurately, deliberately and completely carrying to an orderly end the work imposed upon him. If the money were paid on the instant of the fall of the hammer, and a deed were also thereupon instantaneously to be executed to the bidder, the delinquent owner would not be affected thereby. He can only redeem from the chancery clerk, and this he can do only after the filing of the deeds in his office on April 1. Whether payment be made on the instant or the next day or the next week, is wholly immaterial to him who can only redeem after April 1. But while immaterial to the defaulting taxpayer, it is matter of great interest to the state that lands of delinquents be sold, purchasers be found, bids made good and the public revenues collected by April 1. If this be done, the end of the law has been accomplished and the state fully satisfied. The word ‘ ‘ immediately ’ ’ in the section is thought by counsel to demand payment of a bid on the instant. This view is too literal. The word immediately is a relative term, and has relation to the course of business with reference to which it is used. When the connection in which and the object for which it. is used in the statute under consideration are considered, we entertain no doubt as to its being directory and not mandatory. It is designed for the guidance of the collector, with a view to the end to be accomplished, and when that has been done, the object of the law has' been met. The section is intended to direct the collector as to the proper method of procedure in making sales by which the state’s revenues would with almost absolute certainty be secured. But absolute compliance with the strict letter of the section, or reasonable compliance with the spirit and .purpose of the section, by which, in either case, the end sought is attained, will satisfy the law, and whether absolute compliance with the strict letter, or reasonable compliance with the spirit and purpose of the act be adopted by the officer, in no way affects the rights of the defaulting taxpayer.

If the foregoing views as to the proper construction of our statute seem to call for other support than the reasoning therein employed, such support is at hand and everywhere. Says Cooley, Const. Lim., p. 92, in considering statutory rules for assessment and collection of taxes: ‘ ‘ Those directions which are not of the essence of the thing to be done, but which are given with a view merely to the proper, orderly, and prompt conduct of the business, and by a failure to obey which the rights of those interested will not be prejudiced, are not commonly to be regarded as mandatory; and if the act is per-, formed, but not in the time or in the precise modé indicated, it may still be sufficient, if that which is done accomplishes the substantial purpose of the statute. ’ ’ Shaw, C. J., in delivering the opinion of the court in Torrey v. Milbury, 21 Pick., 67, said: "In considering the various statutes regulating the assessment of taxes, and the measures preliminary thereto, it is not always easy to distinguish which are conditions precedent to the legality and validity of the tax and which are directory merely, and do not constitute conditions. One rule is very plain and well settled, that all those measures which are intended for the security of the citizen, for insuring an equality of taxation, and to enable every one to know, with reasonable certainty, for what polls and for what real and personal estate he is taxed, and for what all those who are liable with him are taxed, are conditions precedent, and, if they are not observed, be is not legally taxed, and he may resist it in any of tbe modes authorized by law for contesting the validity of the tax; but many regulations are made by statute, designed for the information of assessors and officers, and intended to promote method, system and uniformity in the modes of proceeding, the compliance or noncompliance with which does in no way affect the rights of taxpaying citizens. These may be considered directory. Officers may be liable to legal animadversion, perhaps to punishment, for not observing them; but yet their observance is not a condition- precedent to the validity of the tax. ’ ’ Authorities to the same effect might be endlessly multiplied.

It is earnestly insisted by counsel for appellant that the sale of the lands in controversy by the collector to the appellee was a credit and not a cash sale. From the views already advanced by us, it necessarily follows that Ave cannot adopt this contention of counsel. The evidence makes it certain that there was no agreement or understanding that the appellee should be given credit. On the contrary, the sale was announced to be for cash, and so the appellee and the collector understood perfectly. For his own convenience, in part, the collector did not execute the deed and receive the money from the bidder for three or four days after the day of sale. But this did not make the sale one for credit. As already declared by us, the statute is directory, the state has secured the taxes due by the delinquent on these lands, and the purpose of the law has been accomplished. No rights of the taxpayer were sacrificed and his interests were not injuriously affected by the course pursued. See Longfellow v. Quimby, 29 Me., 196; Anderson v. Rider, 46 Cal., 134; Blackwell on Tax Titles, 307; Black on Tax Titles, §§ 108, 109.

On this point reliance is placed by counsel for appellant upon the cases of IIays v. Hunt, 85 N. C., 303, and Donnel v. Ballas, 31 Penn. St., 157. It is to be said, first, that the statutes of both states on the subject of taxation, their general scheme of revenue, are wholly unlike ours, and, in the second place, on their facts they are as far asunder as the poles from the case in hand. In the North Carolina case, the bidder at the tax sale only made good, or had made good, his bid, by paying the money two years and four months after the day of sale, and, even at that late day, only a part of the taxes due by the d¿-linquent owner were paid to the sheriff. The conclusion arrived .at in that case was the only one which could have been reached, but some of the observations indulged by the court before announcing its conclusion do not meet our approval. In the Pennsylvania case (first found in 10 Penn. St., 341, where "the statutes of that state on this subject, and the facts of the case are more fully stated than in 31 Penn. St.), the bidder at the tax sale in June, 1824, took no steps to pay the amount of Ms bid until August, 1829, more than five years after the lands were knocked down to him on his bid. Pie never had conveyance to the lands, and, before his attempt in 1829 to acquire title by payment of his bid made more than five years before, the personal representative of deceased delinquent OAvner had paid to the proper officer the amount of taxes and costs due from the year 1815, and lifted the deed that had been made out, but not delivered, nor. receipted on, to the bidder at the sale in 1824. On these facts but one conclusion Avas possible, and, in the opinion of the court in that case, it is plainly intimated that there had been ‘' management and fraudulent perversion of the law ” attempted to be practiced in this pretended purchase by the bidder at the tax sale.

The decree of the able and learned court below was correct, and it is accordingly

Affirmed.