Virden v. Bowers

Simrall, C. J., delivered the opinion of the court. It is assigned for error that the court below ought not to-have allowed the tax-collector’s deed in evidence to the jury, without first showing as a foundation therefor that the land had been properly assessed; that the occupant, or reputed' owner, had not sufficient personal property to pay the taxes ;• that notice and demand had been given and .made before the sale; that the sale .was duly advertised, and regularly made. In support of this assignment, and other positions taken by the plaintiff in error, on the trial in the Circuit Court, it is contended that the sections of the Code, 1677 and 1700, are18 unconstitutional; or, if not in conflict with the Constitution, that their effect was to make the tax-collector’s deed primafacie evidence, and not conclusive- — -and, therefore, it was competent to inquire into the truth of the facts by testimony. It is important, then, to fix the meaning of these sections preliminary to a consideration of their constitutionality. The words are (sec. 1700) : “ which conveyance shall vest in the purchaser a perfect title to the land sold, * * * subject to the right of redemption ; and no such conveyance shall be invalidated in the courts of this state except by the proof that the taxes * * *' had been paid before sale; and the tax-collector’s sale to individuals, and list of lands sold to the state, shall be primct-faoie evidence that the assessment and sale, and all proceedings of sale, were valid.” In order to give harmony to the entire section, we must, if possible, give such constructions to the several particulars as will produce that result. If the first member of the section stood alone, it would seem as if the Legislature intended to make the tax-collector’s deed conclusive — vesting in the purchaser ‘ ‘ a perfect title.’ ’ But read in connection with the subsequent clauses, it is plain that the general words are subject to important qualifications ; for the right to “ invalidate the conveyance in any court” is given for a certain cause. And, further, it is declared that the “conveyance shall be primafacie evidence that the assessment and sale, and all 2>roceed-ings of sale, were valid.” Moreovej-, we must avoid that construction, if possible, which would defeat the whole law, oían important part, by conflicting with the Constitution. It would be perhaps an unwarranted exercise of power, in the Legislature, to declare the tax-collector’s deed conclusive to 23ass the title. Blackw. on Tax Titles, 80, 82; Cooley’s Const. Lim. 369; Stoudenmeyer v. Brown, 48 Ala. 708, 709. There are certain proceedings which lie at the foundation of the power to sell. There must be, first, a due assessment of the property; there must be default in the debtor in the payment of the taxes; and there must be in the hands of the — 19 — ■collector the assessment-roll, which is in the nature of a warrant to collect — like an execution on a judgment. It may be said, if these things concur, the officer is armed with authority to proceed by sale, if necessary. We have no difficulty in holding that it is competent for the Legislature to affix to the collector’s deed the presumption that these things exist, and to shift on the party contesting the sale the onus of overcoming the presumption by proof. That question is settled by authority. Belcher v. Mhoon, 47 Miss. 620; Griffin v. Dogan, 48 Miss. 19; Meeks v. Whatley, 48 Miss. 340; Stoudenmeyer v. Brown, 48 Ala. 709; Cooley’s Const. Lim. The embarrassment in the construction of statutes, in reference to tax sales and titles, is a good deal aggravated by apparent conflicts in the provisions of the statute. It is apparent, however, especially from section 1700, that the Legislature designed to give confidence and strength to such titles. That statute is in pari materia with the act of 1860, which has been several times considered by this court. The Legislature has repeatedly attempted to fortify the title of the purchaser by raising the presumption that the tax-collector has done in whole, or in certain particulars, his duty in respect of the sale, and of things required anterior to the sale. The Convention had in mind the chronic infirmity of tax titles, growing out of the rigid rule established by the courts that the asserter of the title must show that every provision of the law has been strictly complied with; otherwise, the sale would be void. And it embodied in the Constitution a provision which would relieve the purchaser to some extent from this rigorous rule. It is section 8 of article 12 : “ The Legislature, at its first session, shall provide by law for the sale of all delinquent tax lands. The courts shall apply the same liberal principles in favor of such titles as in sales by execution.” The first- clause of the section is directory, and confers no power which the Legislature did not already have to make laws in respect of the — 20 — subject-matter. The last clause introduces for the first time a permanent rule, which the Legislature could not abrogate, which repealed the old rule to guide the courts in the considr eration of such titles. The common law was that the tax-collector must literally, in every particular, comply with all the directions of the law ; and that the purchaser must show affirmatively such compliance, or his title would be invalid. The purchaser at execution sale was not affected by many irregularities of the sheriff in the execution of the process of the court. If the purchaser showed a valid, subsisting judgment of a court of competent jurisdiction, execution predicated on it, a levy, and the sheriff’s deed, he had established authority in the officer to sell the debtor’s property, although there may have been irregularities, such as a failure to give notice. City of Natchez v. Minor, 10 Smed. & M.. 255, and cases there cited. The doctrine is that the sheriff’s deed cannot be collaterally impeached for irregularities in his proceedings. The essential things are the judgment, execution, levy, and sheriff’s deed. Ward v. Bradford, 2 Ala. 682. As already intimated, the essential things which create authority in the tax-collector to collect the taxes by sale are r a legal assessment — that constitutes the owner of the property debtor to the state ; and, second, a delivery of the assessment-roll to the collector — that authorizes him to receive the money as therein charged against property or persons ; and, third, if default is made in payment on the day appointed by law, he has power to distrain and sell. The assessment, when approved by the Board of Supervisors, opportunity being afforded all interested to point out errors and correct mistakes, is like a judgment. The assessment-roll, or a copy, placed in the sheriff’s hands, is like the execution, and arms him with power to enforce the money, if default is made in payment. If, therefore, there has been a legal assessment, and the roll has been handed the sheriff for collection, and he sells after default made by the tax-debtor, we think that the Constitution is imperative that the courts shall regard his sale — 21 — with the same indulgences and favor as it does that of the ¡sheriff under execution. If it be objected that the tax-collector gave imperfect notice ■of sale, or altogether failed to do so, the answer is that the purchaser is not affected by that irregularity, because we must suppose that the Convention were aware of the law in this state, established in City of Natchez v. Minor, 10 Smed. & M., and that they meant to apply the same rule to tax sales and deeds. It follows, if these premises be sound, that a defective advertisement of the particular property is one of those irregularities which the courts are enjoined by the Constitution to disregard. But we need not go so far as that; for the final clause of section 1697 enacts “ that no error iii the advertisement, or failure to advertise, shall invalidate the sale of any land on which the taxes have not been paid.” It could hardly be doubted, in view of the provision of the Constitution quoted, that this is valid legislation. The statute fixes a day for the sale of delinquent lands, and it may well be supposed ■that if the owner has made no provision for payment of his taxes, he is aware that they will be sold, and of the time, and .acquiesces therein. Is the sale void if the tax-debtor had personal property which the collector might have found if he had made search? Or, is it a condition precedent to the power of sale that the tax•dobtor did not have personal property which might have been found? See sec. 1697. This section must be read in connection with other provisions of the statute on the same subject, especially section 1700. If we . hold that the ownership of ■personal property in the county takes away the power to ■sell land, we must give to section 1700 a much broader meaning than its language imports — we must enlarge the causes for which the sale and title may be invalidated. A close analysis of this section discloses the dominant idea to be that the title of the purchaser must be upheld, unless ¡some vital infirmities defeat it. After giving the form of the conveyance, the declaration is, — 22 — “ w'hicli conveyance shall vest a perfect title,” etc. The-, next is that it shall not be invalidated ‘ ‘ except by proof that the taxes have been paid before sale.” And the last is ‘ ‘ that the conveyance shall be prima-facie evidence that, the assessment and sale, and all proceedings of sale, were’ valid.” We have seen that the assessment, its approval by competent authority, and delivery of the roll, or a copy of the roll, of assessment to the sheriff were the fundamental, essential ingredients of his power to proceed in the collection of taxes. The section under review seems to contemplate that there must be a legal assessment and sale; and, if that be so, then the* conveyance shall not be impugned except on proof of taxes paid befoi’e sale.. That is to say, it shall not be impeached because the tax-debtor had personal property out of which the-taxes might have been made ; nor, secondly, because there was-not “notice” and “demand” made of the debtor. When the language is specific, that the conveyance is primafacie evidence of the validity of the “assessment,” “sale,” and proceedings of sale, it is tantamount to the affirmation that'it shall not be conclusive of validity, but the truth may be established by evidence. We conclude, therefore, that the grounds upon which the-, conveyance may be impeached are (1) that the taxes were paid before sale; (2) that the assessment was illegal; and (3) that there were such infirmities and defects in the “ sale, and proceedings of sale,” as would make it invalid. We think that the fair and true rendering of section 1700 limits and confines the objections to a tax title to these points, and refers all other exceptions to mere irregularities, which shall not vitiate the title. In this last category is a sale of land without “making demand of a settler resident on the land,” or “ personal demand of the tax-debtor,” or “leaving-a written application at his residence,” as specified in section 1697. So, where there might “ be personal property on which, a levy might be made,” a sale of land would not be void.. — 23 — These provisions of the statute are directory merely, and do> not go to the foundation of the collector’s authority. We have already stated what are the essential ingredients of his authority, and when these exist. All other departures from the letter of the statute are irregularities, cured by the sale and conveyance. The last inquisition of section 1697 referred to was not meant to be a condition precedent to the power of sale, but to fix the order in which the two classes of property were liable. All the property of the delinquent is liable — personalty first, and then the lands. In substance, precisely the same direction is given the sheriff in levying money under execution : ‘ ‘ Land shall not be levied on if sufficient personal property be found, or surrendered by the debtor.” Code 1871, sec. 842. So much as a doubt never has been suggested that the purchaser’s title at sheriff’s sale, could be impeached by proof that the debtor had personal property in the county, easy to be found, sufficient to satisfy the judgment. A contrary doctrine would expose land titles acquired at sales under judgments and decrees to such risks and uncertainties that property would often be sacrificed, to the ruin of both debtor and creditor; and consequences exceedingly detrimental to credit and business would affect the entire community. The Constitution is imperative that we must look with the same favor on the tax-collector’s title as we do on one derived from the sheriff. Won-compliance by the sheriff with section 842 does not avoid his sale under execution; nor should the non-conformity of the tax-collector with the directions of section 1697 make void his title. We proceed now to apply the principles hereinbefore announced to the case developed on the trial. The objections were not sufficient to exclude the deed, and it was not error to admit it in evidence to the jury. Nor was-it error to exclude testimony tending to prove that E. Yirden, the landlord, had personal property in Madison County suffi — 24 — •cient to pay the taxes; nor to exclude evidence of defective .advertisement of sale in the particular mentioned. Testimony was admitted, without objection, to the effect that E. Virden was the owner of the land, and that Dinkins was his "tenant. The theory of the revenue law is that the property assessed is liable for the taxes, without regard to whom the land may “be.set down as reputed owner, or who may own the land when .assessed or when sold. The land, the specific parcel, is chargeable with the tax. Code 1871, sec. 1665. Testimony was admitted, without objection, pro and con, on the point of whether- Dinkius, the reputed owner, had per,-sqnal property liable to levy. Whether he had or not does, not, as we have seen, affect the title of the purchaser. Several instructions were given at the request of each party. ¡Some requests were refused. We have the whole case before us, on bill of exceptions to the refusal to grant a new trial. It would be a useless labor "to consider the several instructions, since- the plaintiff was •entitled to the verdict. The defendant made no attempt to ■destroy the presumption arising from the conveyance by evidence tending to show that the taxes had been paid before sale; •or that the assessment was illegal, or insufficient in law; or "that the sale, or proceedings of sale, were invalid. However the truth may have been on all the questions to which the defendant offered testimony, the validity of the sale could not be affected, as they referred to irregularities or •omissions; which did not make it void. On the whole case, let the judgment be affirmed.