Vasser v. George

SlMRALL, J. : J. Z. George exhibited his bill in chancery against W. H. Yasser, commissioner, upon whom was devolved the duties of the liquidating levee board, to vacate and cancel a deed made by the sheriff of Leflore county to the board, for lands bought in by them for the levee taxes, on the ground that the sale and deed did not divest the title of the complainant, hut created a cloud upon it. The bill assails the sale and conveyance upon several grounds. The case is brought up for our revision of the order of the chancellor overruling the defendant’s demurrer thereto. The arguments of counsel have been mainly addressed to the proposition that the law of 1867, imposing the tax, is invalid because it conflicts with the 20 th section of the 12th article of the constitution. The scheme of this statute is to create a liquidating board, charged with the duty of auditing all claims properly chargeable against the levee board created by the act of 1852 and its amendments; when found to be just, to take them up, by substituting new evidences of the debts; but this, upon the condition that the creditors will abate the arrearages of interest. In order to provide a fund for the payment of creditors who will accept the terms of the law, a specific tax of five cents, and three cents per acre, is imposed upon the lands within the district. The levee board, under the act of 2d December, 1858, was to continue for five years. By an amendmént made 10th February, 1860, the time was extended two years. The war intervening in 1861 (August), the taxes under the act of 1858 and its amendments, were, by the legislature, suspended during the war, but to be collected for the unexpired seven years after the termination of the war. By subsequent act, in 1862, tax-payers were required to pay interest upon taxes unpaid during the period of suspension. It would seem that the levee board, being interrupted suddenly [720] by tbe war, in the work of constructing the levees, and also in the collection of the revenues for that object, were left involved in debt. These liabilities, with the accrued interest upon them in 1867, were a heavy burden upon the lands. In order to provide for their liquidation upon equitable terms, this board was created by the act of 1867. There is nothing compulsory in the law; those creditors who did not choose to embrace its offer, by rebate of interest, and taking new securities, were left to their rights and remedies under the original act of 1858, which were stringent and ample. The statute, then, instead of increasing the impositions on the tax-payers of the district, provided a mode of liquidation which, in all probability, reduced the debts of the levee board one-half, if its creditors generally conformed to the terms. The law merely provided a mode of paying pre-existing debts, contracted on the faith of taxes pledged for their redemption. It was a cheap mode, too, apparently in the interest of tax-payers. The question then is reduced to this: Is it competent for the legislature to tax the district, which was the real debtor for these liabilities, to raise the means of payment ? The courts have not only responded in the affirmative, but have held that the legislature may judge of the validity and equity of the claims of creditors. Nor, it has been held, is it a valid objection that the creditor could not have recovered at law. The legislature may determine in favor of the creditor’s claim, upon grounds of equity and justice, without regard to its validity in a court of law. The legislature may award the tax to pay a single creditor or a class of creditors. Central Park Extension, 19 Abbott, 56; Town of Guilford v. Supervisors of Chenango, 13 N. Y. 143 ; Potter’s Dwarris on Statutes, 413. But it is said that whilst the power to levy the assessment may exist, yet, in making the impositions, [721] the legislature is restrained by the constitution, and must make the apportionment as therein prescribed. The tax must be “ uniform,” and must be according to “ value.” *" We are content to refer to our views on this subject, just delivered in Swope v. Bailey. In that case we reached the conclusion that local assessments for local improvements were not embraced in the 20th section of the 12th article, but were referable to the general power of taxation, which was supreme, unless restrained by the constitution of the United States, or of the state. The limitation upon the power in that section only applies and governs taxes levied for the usual ordinary and general purposes of the state, county and incorporated city or town, and does not include special assessments for local public objects for the purpose of ameliorating property and enhancing its value, and also contributing to the general convenience, health or welfare of the community. That, in apportioning such assessments, the legislature or local taxing body may levy them on the basis of special benefits received,, because of the improvement made. And, further, may adopt that mode which, in its discretion, seems equitable and just, either by specific taxes or according to value, or in the instance of a very small locality, as a street or square in a city, either the area of the lots, the front measurement or value may be selected. So, too, in the levee district, composed of several counties and parts of counties, lands in the river counties, which are supposed to receive the largest benefit, may be assessed higher than those more remote. The legislature may classify the lands and tax accordingly. Another objection is, that the sale was not made at the court-house door of the county. In Koch et al. v. Bridges et al., 45 Miss. 256, it was held that art. 277, Code of 1857, directing all sales by the sheriff, under execution or other process (except as therein provided), [722] to be made at the court-house door, was mandatory, and, therefore, he must sell lands at that place. The statute of 18C7, under which these lands were sold, refers to the act of 1858 as to the circumstances, time, place and mode. The 6th section of the latter act, p. 36 (pamphlet), makes the tax a lien on the land, and directs the sheriff, upon default made in payment, on the day therein designated, without further notice, at the door of the court-house of the county where the lands are situated, to sell the land, or so much as may be necessary to pay the tax and cost of conveyance to the purchaser. The reasons for requiring a strict construction of this statute, as to the place of sale, is much more cogent than in sales by the sheriff under execution. The sheriff must advertise his sale in advance. This statute dispenses with notice, or rather it charges the public with notice of sale by its own terms. In so far as the law may have publicity and be known, it informs the public that the lands of delinquent tax-payers will be sold, on a certain designated day in the year, and on no other, and at the place appointed. The delinquent tax-payer is thus warned that his land will be sold, and the community, so far as advised of the terms of the law, are advised that all-lands upon which taxes have not been paid will be sold on the particular day, and appointed place. Manifestly, the object of naming day and place was that the people might then and there assemble, and have opportunity to bid, and thus insure ’a fair price for the least parcel of land that would produce the required sum of money. The entire scheme of the law would be defeated, if the sheriff might make the sale either upon another day or at another place. The statute notifies bidders that these sales will be made at the court-house door; naturally they would assemble there at the hours usual for such sales. The sheriff, from the most improper motives, may put up [723] the lands for sale at some other place, although it maybe in the county town, where only the few who had knowledge would be present, and gross injustice be done the land owner and the levee board. We are of opinion that the sheriff cannot, at his will or caprice, select another place. His statutory power of sale is at the door of the court-house. The sales must begin on the day named, but if not completed on that day, may be adjourned from day to day until completed. Sec. 6, Act 1858, p. 37, Pamphlet Laws. It is further averred in the bill that the lands were offered for sale in lots of 40 acres seriatim, for the taxes and costs due on each several parcel, and when no bid was made therefor, each lot was struck off to the levee board, and that a sale was not made by offering a subdivision for the taxes due upon the entire section. The lands were in two several tracts. The injunction of the statute is, to sell the land or so much thereof as may be necessary, etc. There is no difficulty in reaching the legislative intent, to wit: to sell only so much as would suffice to relieve the whole from burden. If the complainant owned an entire section, so much, that is, the least quantity of it, known by subdivisions, that will ■bring the required sum, should be sold. The power to dispose of the whole is to be exerted only when less will not pay the tax and costs. We would suppose, therefore, if a 40 acre lot would not produce enough, then another 40 acres should be added, and so on, until the entire tract were offered. In Hodge v. Wilson, 12 S. & M. 498 ; Boisgard v. Johnson, 23 Miss. 122, and Baskins v. Wilson, 24 ib. 431, the rules were made in that mode, and held to be valid. In Ray v. Murdock, 36 ib. 696, a sale of oneeithth of a section at a time, and of each eighth until enough was sold to pay the taxes, was held to be authorized by the statute. The section provides,.“ if no. person shall bid the amount of taxes due on any tract of [724] land, such tract shall be struck off to the levee treasurer.” If, in offering the several subdivisions, none of them receive a bidder that will pay the tax upon the whole, does the statute intend that then the entire section shall be offered? The sheriff, in this instance, proceeded with the sale, on the theory that each forty acres of the section was subject to its own tax — and must be sold for the ten cents assessed on each acre— and not on the theory that the entire section, or half section owned by the plaintiff was subject to the tax, and that in raising the money by sale, only so much of the whole tract should be sold as would suffice to pay the taxes due upon the whole. The rule prescribed in the Revised Code of 1857, art. 35, p. 79, for sale of land for taxes: first, an offer of the smallest legal subdivision; if that does not produce enough, he shall add another similar subdivision, and so on until the requisite amount is produced. The levee law of 1858, having been passed so soon after revision of 1857, would strongly induce the inference that the sales to be made under it must be conducted in the mode prescribed in the code. It is only in the contingency that the “tract,” that is, the section or half section owned by the tax-payer will not, when offered as a whole, produce the amount of taxes and costs, does the statute allow it to be struck off to the treasurer of the board. This strongly implies that it must be offered to other bidders as a whole. We can suppose that bidders would decline to buy an eighth or quarter of a section, who would give ten-fold the amount of dues against it for the entire half. The law intends to guard the property of the tax-payer, as far as practicable, from sacrifice. If it enforces a burden put upon it by sale, it is studious to deprive him of no more of it than is necessary to raise the needed sum. Without pursuing further an examination of the several grounds of the demurrer, or declaring an opinion on [725] any others than these already considered, we think the chancellor did not err in overruling the demurrer. Upon the argument of a motion for a re-argument in the cause by appellant, • . Nugent $• Terger, for the motion, Argued the case orally, and filed a written brief, submitting the following propositions: The fourth section of the act of 2d December, 1858, provides “ that each and every sheriff, charged under the direction of this act with the collection of the levee revenue, shall, on or before the first Monday in January, 1859, enter into bond, payable to the state of Mississippi, with two or more good and sufficient sureties, to be approved by the probate judge of the proper county, conditioned,” etc. The same section fixes the penalty of the bond for Sunflower county at $40,000, and provides that the failure to give the bond by the time stipulated shall vacate the office of sheriff, and the vacancy shall be filled according to law. The tax levied by that act was ten cents per acre on each and every acre of land within the district. The act of 1867 levies a tax of three cents per acre on the lands in Sunflower county, and the fourth section of that act provides for the execution of bonds annually, on or before the 1st day of January of each year next succeeding the levy of the tax, and declares that the act of 1858 and its amendments shall be made to apply and govern the execution of bonds as far as the same can be made to apply, and for the non-performance of the duties under the act, sheriffs shall be subject to like penalties as are provided in the act of 1858; but the act of 1867 does not declare that the office shall be vacated. The bond, in this case, is in the penalty of $15,000, and does not conform to the statute, but is amply sufficient to cover the whole tax of the county, now less than one-third what it was under the act of 1858. The act of the legislature, under which Leflore county was carved out of Sunflower, expressly makes all the officers of the county of Sunflower the officers of Leflore, and extends their bonds to that county. The only question that can possibly arise in this view of the case is, had the legislature the power to do this 1 [725] Decree affirmed. It was held in Cort v. "Wells, 2 Vt. 318, that the failure to give the proper bond would avoid the sale; but this case was expressly overruled by Spear v. Ditty, 8 ib. 419; see also Ives v. Lynn, 7 Conn. 505, and Hale v. Cushing, 2 Greenl. 218. But the levee commissioner is the only party who can can complain as to the sufficiency of the bond; if he be satisfied, the object of the law is subserved. All these objections we have expressly cured by section 317 of the Code of 1871, and the acts of the collector are thereby made valid and binding as lawful official acts. The acts of 1858 and 1867 both tax on the lands within a district described by metes and bounds; and within that district the lands of the appellee are located. The acts required the sales of delinquent lands to be made at the court-house doors of the several counties, and applies as well to counties in the district existing when the tax was levied, as to those within, the same district in part enacted afterward. It makes no difference that the deed was not filed on the day of sale. The commissioner’s title depended on the fact of the sale and purchase. Hill v. Kendall, 25 Yt. 528". And the failure to file the deeds simply extended the time for redemption, as allowed by law. Donohoe v. Richardson, 21 Mo. 421. ■ 2. Can the appellee have the levee tax-deed canceled without paying or tendering his taxes ? By the express provision of the act of 1867, from and after the sale of lands for levee tax, all state and county taxes are suspended, and the commissioner is bound to collect them when the lands are sold by or redeemed from him. Act 1867, p. 246, § 13. So that the lien created by the act, in reference to the levee tax, is extended to all other taxes, and is made to secure them. By the very terms of the act itself, the appellee has the power at any time to pay his taxes and have the deed complained of canceled. He still has the privilege so to do; but, placing himself upon the irregularities complained of, he seeks to have the deed canceled and his lands exonerated from the payment of these “ debts,” due and chargeable upon the lands. If the sale has been irregular, the penalty of fifty per cent is not chargeable upon him. He still owes all the taxes and legal interest, and declines to pay them. He comes into a court of equity for relief, and in court should do, or offer to do, equity. He might even now pay his taxes, and the deed would be canceled at once. It is nothing but right and proper that he should pay his taxes; and he should offer to do equity before calling upon the court to do that which it was within his own power to do in the first instance. 1 Story Eq. Jur. 64, et seq., and cases cited. If the sale of the lands for non-payment of the taxes be void, then the tax is still due by the appellee, and is a lien upon his lands. The attempt to foreclose that statutory lien was irregular and ineffectual, but the lien still exists. And yet there is no mode pointed out by statute in which the lien may be enforced after the day of sale, and the tax collected. If the appellee be allowed now to have the tax-deed canceled, and for nothing held, the anomaly would be presented of a valid lien, past due and unpaid, absolutely destroyed by the irregular conduct of the tax collector. W. P. Harris, contra. 1. The question now is, whether the sheriff may lawfully collect the levee tax without having given the bond required, or giving any security whatever that the money collected shall go into the treasury of the levee fund. It is submitted that he cannot; that even if the statute did not expressly prohibit such collection and declare the office vacant, which it does upon a failure to give the bond, it would‘result necessarily that he should not be allowed to collect from the citizen, money which, in the absence of the security required by the statute, he might never pay into the treasury. Cort v. Wells, 2 Yt. 318. And the bond must not only be given, but it must be such an one as the statute requires, not only on account of the interest of the tax-payers in having their money appropriated rightly, but because the power to sell is statutory, and a strict compliance with the statute an essential pre-requisite to the power of sale. Isaacs v. Wiley, 12 Yt. 674; see also Spear v. Ditty, 8 ib. 419; Hale v. Cushing, 2 Greenl. 218; Parker v. Overman, 18 How. (U. S.) 137. 2. The statute required the deed to be filed on the day of sale; if not so filed, the sale was void absolutely. Green v. Craft, 28 Miss. 70; see also Blackwell on Tax Titles, 300, et seq. Simrall, J.: This case having been submitted to us on the points made in the pleadings, and not embraced in the original opinion, we present these additional views : The second section of the act of 1860 requires bond to be executed on the first Monday of January annually or biennialy, as the sheriff may elect. But no sheriff shall hold his office, or collect said tax, unless be shall execute the bond on or before the first Monday in January, etc., etc. The fourth section of the act of 1867 requires bonds payable to the state to be executed by the sheriff, and adopts provisions of the statute of 1858, and the [729] amendments thereto, as to the execution of the bonds and the performance of their duties; and for non-performance of duties under this act, denounces all the pains prescribed in the former acts. The effect of these statutes is to declare that if the sheriff fails to make a proper bond, his office shall be vacant, and “ he shall not collect the tax.” We construe the words of the law as prohibitory of collection, unless the bond has been executed. The legislature seems to have taken special caution not to permit the sheriff to receive the money from the tax-payers until he has given the requisite bond and security. If he was not competent to receive, clearly he could not take concise measures by a sale. We should not be inclined to hold a sale for taxes made by a sheriff, under a proper bond, who might be unlawfully in office, to be void for that reason alone. We should apply the rule of the common law, affirmed by the statute, to a tax sale by such officer, as we would to any other official act done by him. If in office by color of right, his official doings as to the public, or persons having an interest in them, are valid. Kimball, Raymond & Co. v. Alcorn & Fisher, 45 Miss. 151. In some of the states it has been held that the rule ought not to have application to a tax sale; in other states the rule is different. The better reason is, not to except a tax sale of de facto sheriff out of the general rule, We only hold that if the sheriff does not execute a proper bond, he cannot collect, because the words of the statute so demand. In the absence of such a declaration, we would only inquire whether the sheriff was in office, exercising all its functions under a claim of title ; and would uphold a tax sale made by him, upon the same principle and for the same reason that we would the service of a writ, or the levy of an execution. Although this bond does not meet the demands of the statute, and would not authorize the sheriff to collect the taxes, [730] yet it would seem to be valid as a common law obligation. The 13th section of the act of 1867 directs the sheriff, if no person will bid the amount of taxes due on the land, to strike off the same to the “ board constituted under the act, who become the purchasers thereof.” By the eighth section of the act of 1871, in the above contingency, the lands may be struck off to the “ levee commissioner.” The statute allows two years for the redemption of land from the day of sale, and requires that the deed shall be filed in the probate, now chancery, clerk’s office, and remain there unrecorded for that space of time. The clerk is authorized to receive the redemption money and cancel the deed. It would seem to us that the filing of the deed at the proper time is a part of the proceedings by which the sale is completed, and the title vests in the purchaser, and must be complied with. The clerk’s office is the place where the tax debtor would naturally go to effect a redemption, by procuring a cancellation of the tax collector’s deed. It is the more convenient place to the majority of tax-payers, since it is in the county where the lands are situated. These views, in addition to those embraced in the original opinion, cover all the material points made in the bill; all, at least, that we are prepared to express an opinion upon.