Maris v. Lindsey

87 So. 13, 124 Miss. 742

• Court: Mississippi Supreme Court
• Decided: October 15, 1920
• Docket: No. 21456
• Status: Published

Opinions

Ethridge, J.,

delivered the opinion of the court.

(After stating the facts as above.) It will be seen from what we have stated that the principal thing considered on the motion dissolved is the validity of the trustees’ sales above referred to, and this appeal is principally for the purpose of seeing if this court will overrule a decision rendered by it in the case of the Planters’ Mercantile Co. v. Braxton, 120 Miss. 470, 82 So. 323. On this appeal a vigorous assault is made on the Braxton C'ase, supra, not only by the attorney for the appellants, but by several attorneys as amicus curiae, and there are also briefs amicus curiae to sustain the decision above referred to.

We have laboriously and painstakingly studied the briefs and authorities, and have reconsidered the whole subject, and have reached the conclusion that the Braxton Case, supra, should not be overruled. It is, to say the least of it, a reasonable interpretation of the language used, and wdiere there are two reasonable interpretations deducible from the language of a statute, and the court has already adopted one of them,i the decision should stand. There ought to be stability in court decisions.

The statute under review in the present case and in the Braxton Case, supra, is section 2772, Code of 1906 Hemingway’s Code, section 2276), and it reads as follows:

“AH lands comprising a single tract, and wholly described by the subdivisions of the governmental surveys, sold under mortgages and deeds of trust hereafter executed, shall be sold in the manner provided by section one hundred and eleven of the constitution for the sale of lands in pursuance of a decree of court, or under execution. All lands sold at public outcry under deeds of trust hereafter executed, or other contracts- hereafter made, shall be sold in the county in which the land is located, or in the county of the residence of the grantor, or one of. the grantors in the trust deed, provided that where the land is situated in two or more counties the parties may contract for a sale of the whole in any of the counties in which any part of the land lies. Sale of said lands shall be advertised for three consecutive weeks preceding such sale, in a newspaper ... in the county, or, if none is so published, in some paper having a general circulation therein, and by posting one notice at the court house of the county where the land is situated, for said time. . . . No sale of lands under a deed of trust or mortgage shall be valid unless such sale shall have been advertised as herein provided for, regardless of any contract to the contrary. An error in the mode of sale such as makes the sale void will not be cured by any statute of limitations, except as to the ten years’ statute of adverse possession.” •

It is admitted in the argument here that the advertisement must be within a reasonable time before the sale, the appellants contending that the language of this section does not mean what we said it meant in the Braxton Case, supra, but that any time within a reasonable time preceding a sale is a sufficient compliance with the statute., and the opinions entertaining that view, as appear from the briefs, vary in their views as to the latitude that the court can allow, varying from one week to three months. One brief, amicus curiae for the appellant suggests that the statute be so construed as to provide that three weeks before the week of the sale, instead of three weeks before the day of the sale.

In construing statutes this court has no desire to reach any conclusion except one in harmony with the legislative intent, and. its efforts are directed to ascertaining the legislative intent, and if the legislature acts within constitutional limits, ive will give effect according to their term and intendment, ascertained according to recognized rules of statutory construction. Wte think the opinion by Justive Stevens in the Braxton Case, snpra, revieAVs the authorities in so far as they deal Avitli the Avord. “preceding,” but counsel for appellees in his brief calls attention to the latest authoritative work in the lexicon field, to AArit, the Oxford Dictionary of the English Language, Avhich' accords Avitli the vieivs Ave expressed in the Braxton Case, supra.

Much has been said about hardships and the destruction of titles, and similar things. We think there is no hardship involved, because it is an easy matter to make a sale on the day following the last day of the publication, but if, for any reason, it Avas not desirable to sell on such day as immediately follows the last day of a three weeks’ publication, the notice could be run for an additional time in the newspaper, which would enable the trustee to select a day Avhich might be desirable by the simple expedient of running the advertisement in one or more issues of the paper, and the legality of this course was distinctly and specifically upheld in the case of Lake v. Castleman, 116 Miss. 175, 76 So. 877. We feel satisfied with the soundness of the decisions referred to, and refuse to overrule them.

It next remains to be decided whether the tax sale conferred a Adalid title on the appellant, or whether the redemption attempted is good or not. Very little attention is iiaid to this point in the briefs and arguments, but' it may be the chancellor desired our views on that proposition.

Section 4338, Code of 1906 (Hemingway’s'Code, section 6972), reads as follows:

“The tax collector shall file all conveyances of land sold to individuals in the office of the clerk of the chancery court of the county, on or before the first Monday of May, there to remain for two years from the day of sale, unless the land be sooner redeemed; and the owner of the land or any person for him, may redeem the same within two years by paying the clerk, regardless of the amount of the purchaser’s bid at the tax sale, the whole amount of tax for which the land was sold, with all costs and charges consequent upon the sale, and twenty-five per centum damages upon the amount of tax, and all costs, and also all state and county taxes that have accrued on the land since the sale, and also five per centum on the whole amount of the redemption money; to infants and persons of unsound mind whose lands may be sold for taxes, the right to redeem the same within two years after attaining full age or sanity, from any purchaser thereof, on the terms herein prescribed, and on their paying the value of any permanent improvements on the land made after the expiration of two years from the date of the sale of the lands for takes.”

We think thfit "when the parties went to the chancery clerk and paid the amount which the clerk stated was necessary, and when the- chancery clerk canceled the deed and surrendered it to them, it constituted a valid redemption, although the clerk did not collect the taxes accruing subsequent to the sale for taxes. The appellants will have the right to collect these taxes from the appellees in an accounting, and make them a charge, if necessary, on the lands. The statute requires such a conveyance to remain on file for two years for the purpose of redemption, and Avhen the chancery clerk canceled the deed and surrendered it to them the deed cannot by his mistake ripen into a valid conveyance, 'notAvithstanding the effort to redeem. Erwin v. Lee, 118 Miss. 194, 79 So. 104.

.It folloAVs from Avhat we have said that the judgment of the chancellor in retaining the injunction until an accounting can be had Avas proper. If the amounts paid and the amounts received bA'- the appellants do not equal the amount of the indebtedness under the deeds of trust held by Maris at the time of the filing of the bill, the court may decree the sale to pay such amount as it may find to be due the appellant Maris, not barred by the. statute of limitations at the time when the injunction was sued out.

Affirmed and remanded.

Sykes and Holden, JJ., dissent. Smith, C. J., being disqualified, took no part in this decision.