Byrd v. Dickson

*612 Ethridge., P. J. Mrs. Jane Dickson was complainant in-the court below", and filed a bill to cancel clouds on her title to said lots, situated in the town of McHenry, Miss. She deraigned title from the government to herself, and then alleged that Mrs. J. E. Bju’d was asserting same claim to the said lots and collecting certain rents from the same, and prayed for a cancellation of the claims of the said Mrs Byrd and for an accounting for the rents and profits. Mrs. Byrd answered the bill, setting up claim to a tax title, in which it was alleged that the lands in question "had been sold for taxes in the year 1915, and the lands had been struck off to the town of McHenry, and, after the period of redemption had expired, she purchased the same from the town of McHenry. The appellant admits that both the tax sale and the deed from the town of McHenry to Mrs. Byrd are- void. The appellant, in her brief in this regard, says: “The fact that the conveyance from the town of McHenry was not made under a general ordinance is immaterial, because appellant is not relying upon a valid conveyance; if she were, she would go out at once, because the tax sale *613 was not valid, but she is relying upon adverse possession under color of title, and this she is clearly entitled to do. The town of McHenry cannot complain, because it never did hold a valid title, but it thought it had a title, and undertook to convey its title there under the authority of these conveyances as color of title. The appellant went into possession and occupied it for more than three years.” The appellant, also in her brief, in the beginning of the argument, says: “The question to be .decided in the ease is: Does the Statute of Limitations, providing as to actual occupancy for three years after two years from the day of the sale of land held-under a conveyance by a tax collector, apply in this case? If it does, then the appellant is entitled to a judgment in this court. If it does not apply, then the case should be affirmed.” The section relied upon by the appellant is section 2633 of Heming'way’s Code of 1927, which section reads as follows: “Actual occupation for three years, after two years from the day of sale of land held under a conveyance by a tax collector in pursuance of a sale for taxes shall bar any suit to recover such land or assail such title because of any defect in the sale of the land for taxes, or in any precedent step to the sale, saving to minors and persons of unsound mind the right to bring suit within suck time, after the removal of their disabilities, and upon the same terms as is provided for the redemption of land by such persons.” Laws 1912, chapter 233. Section 7013 of Hemingway’s Code of 1927 (section 3429, Code of 1906) provides: “After the time for redemption has expired, the mayor and board of aldermen may take possession of and lease or sell any lands which it has acquired at tax sale to any person, in any manner that may be prescribed by ordinance.” *614 The last cause of this section, “in any manner that may be prescribed by ordinance,” is intended to require the town of McHenry to provide by ordinance the terms and conditions under which the municipal property acquired through tax sales may be conveyed. It is a provision for the public protection, intended to give all persons equal rights to acquire and purchase such property from the municipalities, and before the municipalities can sell such lands such ordinances must -be duly passed and published in the manner prescribed by law for passing ordinances. After this is done, then every person is advised as to the terms and conditions under which said property can be purchased, and has the right to apply to the municipality to purchase same, and to have equal rights with any other person. It is mandatory upon a municipality to prescribe by ordinance the terms, conditions, and manner of making such sales, and it cannot dispose of municipal property acquired through tax sales without so doing. In the case before us there was no ordinance complying with the statute, and the town undertook to sell the land here involved to the appellant, Mrs. Byrd, without compliance with the statute; consequently, the deed executed to Mrs. Byrd by the town was illegal and void. It conveyed no rights, and Mrs. Byrd stands in the same position as to the land as she would have stood or been placed in, had no such sale ever been made, and had she gone into possession of the land without any conveyance. - The section last quoted gives the mayor and board of aldermen a right to take possession of such lands after the time for redemption has expired. This right is a right that passes to its vendees, and without a conveyance no person eixcept the municipal authorities is authorized to enter into possession. Section 26313 of Hemingway’s Code of 1927 (section 30-95, Code of 1906), above set out, says actual occupation after two years from the *615 day of the sale of land held under a conveyance by a tax collector in pursuance of a sale for taxes shall bar any suit to recover such land or sell such title, etc. It was held in Pipes v. Farrar, 64 Miss. 514, 1 So. 740, that this section applies to purchasers from the state of tax sales, the same as to a purchaser from a tax collector; in other words, as we understand that decision, where the state had acquired the right to go into possession and acquire perfect title by three years’ adverse possession, it had the right to convey that right to its vendee to likewise enter into possession, and, if continued for three years or longer, the tax sale would be validated. In other words, we are of the opinion that the three-year occupation, after the two years for redemption has expired, makes the tax sale valid as to all defects named in the statute. We assume that the same rule applies to municipal tax sales, and that the purchaser from the municipality would have a right to enter into possession, and, if continued for three years, that it would validatel the lax sale to the same extent as a sale under the state taxing proceedings; but we do not think that the statute extends any further, and it does not, in our opinion, have the effect of making valid a void sale from the municijpality, or from a state, to the purchaser, or the attempted purchase by the person from the state, or from the municipality. In other words, the statute is designed to cure one link in a title; that is, the possession continued for three years under a conveyance makes the sale a valid and legal sale for all purposes, after the expiration of such time, but such possession does not curve a defect in a subsequent conveyance, and the Statute of Limitations applicable to the purchaser from the state or municipality subsequent to the tax title depends upon the ten-year Statute of Limitations, where the statute operates. Before the purchaser from the state or municipality can get the benefit of the three-year -Statute of *616 limitations, it must have a legal title from the municipality or the'state, or from the purchaser at the tax sale. It takes this to set the statute in motion; In the case before us, Mrs. Byrd stands precisely in the attitudenf a person entering without right. Could, then, a trespasser or person without right get a perfect tax title by the mere going into possession without color of title? We think not. In the deed from the town of McHenry to Mrs. Byrd no title passed, and nothing would prevent the town asserting title to the land. There was no such privity of relation between Mrs. Byrd and the tax sale as will set the statute in motion, or make it operative in her favor. It is clear that, if an individual buys at a tax sale which happens to be void, and without any contractual relation or privity of contract, the third party going into the possession of land, such possession wmuld not operate either for the benefit of the third person or for the original tax purchaser. The design of the statute is to encourage purchasers to buy at tax sales and protect the state in its revenues. It was never intended to confer power in a stranger to the title to get in possession of the land and acquire a title under the favored period of limitations prescribed by the act. It would be an unwarranted extension of the purpose of the statute to make it operate to cure all defects in the title of the occupant between the tax sale and the occupancy of the land. In other words, the town parted with nothing by its deed. The Statute of Limitations in civil cases does not run against the state, counties, or municipalities. Section 100 of the Constitution, and section 2684 of Hemingway’s Code of 192.7 (section 3096, Code of 1906). In the case before us the town had never been in possession, and it could not prevail, under the statute of three years limitation. Its right to go into possession is not affected by its unauthorized conveyance to Mrs. *617 Byrd. Mrs. Byrd would have no standing admittedly as against the town; can she, then, be in the more favored situation with reference to the original owner? The original owner is not affected by the conveyance to the town, because it is admittedly void, and the town has never had any possession of it. The original owner’s rights as against the appellant are not affected, because the appellant is not entitled to invoke the three-year statute. The court below having found in accordance with these facts, judgment will be affirmed. Affirmed.