Magee v. Turner

46 So. 544, 92 Miss. 438

• Court: Mississippi Supreme Court
• Decided: March 15, 1908
• Status: Published

Opinion

Mates, J.,

delivered the opinion of the court.

This was an action of ejectment, brought by J ames I). M. Turner and others against G. Wood Magee, for the recovery of a certain tract of land described in the declaration. The land originally-belonged to one Donalson F. N. Turner, Sr., who died about the year 1854, leaving a last will and testament wherein the lands in question were devised to his wife, Mrs. Jane Turner, for life, and after her death the remainder to go to a nephew of the original owner; that is to say, Donalson F. N. Turner, Jr. Mrs. Jane Turner subsequently married one Hyman Outrer and moved to Texas, and while there sold her lifer estate to one James H. Prestige in 1859. Mrs. Turner died in Texas on September 4, 1906, and the plaintiffs in this suit are the heirs of Donalson F. N. Turner, Jr. After the conveyance to Prestige, he sold his interest to S. Gwin. Gwin failed to pay the taxes on the land for the year 1874, and on the first Monday of February, 1875, the lands were legally sold for the taxes due for the year 1874; the state becoming the purchaser thereof. It is admitted that the sale for the taxes due for the year 1874 was a valid sale in all respects. Subsequently, on the 10th day of May, 1875, about three months after the first sale and purchase thereunder by the state, this same land was again sold for taxes under the abatement act of March 1, 1875, and again purchased by the state. On the 10th day of August, 1876, about eighteen months «after the first sale and fifteen months after-the second sale, and within the period of two years allowed at that time for redemption from tax sales, one Samuel Hickman procured from the auditor a deed conveying to him these lands. Hickman moved on the property and lived there for a long while, subsequently making a deed to G. Wood Magee, who now claims this property. The facts further show that some time in the year 1888 Hickman filed a bill in the chancery court for the purpose of confirming his tax title of the 10th of May, 1875, and not the tax title of February, 1875. The ejectment case at bar was submitted to the court below on agreed facts, and the court, sitting without a jury, found in favor of plaintiffs.

• In our view of it there is but one question involved in this case, and this seems to have been settled by the case of Shattuck v. Daniel, 52 Miss., 834. The question is whether or not the payment of the taxes to the auditor by Samuel Hickman and procuring a deed to this tract of land from the state before the two years allowed for redemption by the owner expired, operated as a redemption of the land for the benefit of the owner. When this deed was made by the auditor, the state had no title which it could convey. The state had only an inchoate right, which would mature into a title two years from the date of its purchase, provided there was no redemption. This being the case, any payment of the tax by any person operated as a redemption of the land in favor of the owner. The state had no title, and it could convey none until the expiration of the two years. This was held in the cases of Shattuck v. Daniel, 52 Miss., 834, and Faler v. McRae, 56 Miss., 227. In those cases it was held that the auditor had no authority to make a sale of lands held by the state for taxes until after two years from the date of purchase by the state, the period allowed for redemption. It was further held that up to the expiration of this period the state has only an inchoate title, which will become absolute after two years, and if the auditor allow a person to. enter the land and become a purchaser before the expiration of this time, contrary to the statute, such purchaser, entering upon the land, obtains no title. When this is done, the payment to the state of the money is simply a redemption of the land Before the expiration of the statutory period of limitation, and operates for the benefit of the owner. The Shat-tuck case is almost identical with the case presented now. The attempted confirmation of the so-called tax title in the chancery court by Hickman in 1888, did not add any strength to his claim. It is shown by the record that Mr. Hickman had no tax title to confirm, and the proceeding was a nullity, since the attempted sale of May 10, 1875, was void, and the payment of the tax to the auditor operated as a redemption and cancellation of the February tax title. As there was no default in taxes, and no tax title to be confirmed, in 1888, it necessarily follows that a proceeding instituted for that purpose was a nullity.

But it is argued that this conveyance by the auditor necessarily conveyed such title as the state had, and that, though the sale of May 10, 1875, was void, yet the sale of February, 1875, was a valid sale, and, the owner of the land never having offered to redeem it at the expiration of two years, the state’s title became perfected in Hickman. We cannot yield assent to this contention. The payment of the tax by Hickman operated as a redemption, and that left no sort of claim in the state which could mature into a title or be confirmed by any sort of proceeding. There can be no life given to a void proceeding.

Affirmed.