McLaran v. Moore

Cooper, J., delivered the opiuion of the court. On the first day of March, 1875, the land of the appellees was sold for taxes and purchased by the State. In October, 1876, complainant applied to the auditorio purchase the land, and received from him a conveyance thereof. Upon this deed he instituted an action of ejectment against the tenants of the appellees, but failed to maintain it for the reason that owners of the land had, by the revenue act, under which the land was sold, two years within which to redeem from the tax-sale. McLaran v. Caruthers, 56 Miss. 371. Having failed in the action of ejectment, the complainant exhibited this bill in the Chancery Court of Monroe County, to subject the land to the payment of the taxes paid by him in his purchase of the lands, — those paid for subsequent years,— and damages and costs, under sect. 1718 of the Code of 1871. The appellees demurred to the bill, and from a decree sustaining the demurrer and dismissing the bill this appeal is prosecuted. The demurrer presents five special causes, but in this court argument is made only in support of one of the grounds, the fourth, which is, that “ at the time of the purchase of the lands in the bill mentioned, by complainant, the same were not liable to be sold for taxes, and complainant, by his purchase, or pretended pimchase thereof, and payment of money therefor, acquired no right to demand the same from defendants, with costs and damages, and no lien on or against the land.” The proposition of the appellees is, that the complainant, by purchasing the land before the expiration of the period allowed by law for redemption, acquired no right against it; but that the purchase-money paid by him is to be treated as a voluntary payment of the taxes to the State. The complainant, on the other hand, claims to be a purchaser at a sale of the [382] land for taxes, and as such entitled to the statutory lien created by sect. 1718 of the Code. This section has been heretofore considered by the court in the cases of Cogburn v. Hunt, 56 Miss. 722; 57 Miss. 683, and Mayer v. Peebles, 58 Miss. 628. In Mayer v. Peebles, the purchase was made at the sale for taxes by the collector. In Cogburn v. Hunt, the land was struck off to the State and purchased by the complainant therein from the auditor. It is said by counsel for appellee that there the sale was made before the expiration of the period for redemption. We have not examined the record of that cause to discover how this may be, the point was not made by counsel in the case, and was not considered or decided by the court. It was, however, then decided, that a purchaser from the auditor, of lands sold to the State for taxes, was a purchaser at a tax-sale within the me ailing- of sect. 1718. The question now to be considered is, whether one purchasing from the State, before the expiration of the time allowed for redemption by the owner, is entitled to the statutory lien. It is said by counsel for the appellant, that the State, by its purchase of the land, discharged the taxes due ; that the sale was a satisfaction of the taxes, and thereafter th.e State was owner of the land, subject, for a limited time, to redemption by the former owner; that it could not at one and the same time occupy the positions of owner of the laud and creditor for the taxes due on it, and, therefore, that sales by the auditor are not sales for taxes. As to all sales which have occurred since the adoption of the Code of 1880, it must be a sufficient answer to say that the Legislature, by carrying forward sect. 1718 of the Code of 1871 into the Code of 1880, after the decision of Cogburn v. Hunt, intended to adopt it as construed in that case. But aside from this we are satisfied with the construction therein given to the statute. It is true, that by its purchase, the State becomes owner of the land, and the taxes before due are discharged as a demand against the former owner. After the sale, and during the period [383] allowed for redemption, the State has an inchoate title to the land, which may or may not ripen into a perfect one; but the sale being made, the personal liability of the owner is discharged and thereafter only the land is debtor for its taxes. Throughout the whole proceeding, from the assessment of-the land as the preliminary step to charge it with taxes, to its ultimate return, by a sale through the auditor, to the class of tax-bearing property, the State occupies the attitude of a tax-gatherer, and no step is taken that has not for its object the collection of taxes as revenue. In all proceedings up to, and including the sale by the collector, the State, by its agents, is actor; after the sale it reposes upon the advantage thereby acquired and awaits action on the part of others — action on the part of the owner wishing to redeem, or action on the part of a purchaser desiring to buy. To an application from the owner in his season, or by a person applying to buy after the expiration of the period of redemption, it responds by a demand for the taxes due and unpaid, upon payment of which it relinquishes or conveys its title to the land. It conveys for no other consideration, it demands no other price. Sales for taxes under our revenue laws are of two classes : one made by the collectors in the several counties for the taxes of a single year; the effect of this is to divert the title of the delinquent tax-payer; the other, made by the auditor, for all unpaid taxes, whether they be due for one or many years, and its effect is to divest the title of the State. A purchaser under either is purchaser at a sale tor taxes, and failing to procure title is protected by the provisions of sect. 1718, Code of 1871. Code 1880, sect. 436. But it is said, that at the date of the purchase by the complainant the period for redemption had trot expired, and there was no authority in the auditor to sell. This is true, and because of want of power no title to the land passed by the conveyance, and for this reason complainant failed to recover the land in ejectment. But title or a valid conveyance is not necessary to the enforcement of the statut [384] ory lien. On the contrary, if a valid conveyance could be shown, it would be fatal to complainant’s bill, for no man may enforce a lien upon his own lands. • There cannot be degrees of voidness, and one void title is necessarily as ineffectual as another. A sale by the collector under a void assessment, or for taxes levied at the wrong time or place, or a sale made at a wrong time, would all be void ; but neither a valid assessment, levy, nor sale are necessary to support the claim to the lien conferred by sect. 1718, as has been distinctly declared in the cases heretofore cited. From the facts stated in the bill and admitted by the demurrer, it appears that the land was liable to taxation ; that an attempt was made to tax it; that the taxes have not been paid by the owner, nor the land redeemed within the time limited by law, and that complainant claims by virtue of a sale for said taxes, made by an agent of the State, but not at a time authorized by law nor in conformity with the provisions of law. As was declared in the case of Cogburn v. Hunt, 56 Miss. 722 the object of the statute was “ that no conceivable case should arise in which the purchaser should lose both the land and the money,” or, in other words, that no tax-payer shall retain his property intact, and refuse to contribute his proportion to the public burden. In Green v. Williams, 58 Miss. — , relief was refused to a purchaser under similar circumstances as appear in this case, not because, as was there said, he would not have been entitled to it under sect. 1718, but because at the date of the purchase by him this section was not in force. Though this section is a wise and just provision, and ought to be liberally construed in furtherance of its policy, there may be occasions where one claiming its benefits would be restrained from asserting a demand for the damages therein provided. If in a case like this, or when a collector sold the land before the day fixed by law for sale, it should be made to appear that the owner, within the time allowed for redemption, or before the day when sales might be lawfully made, applied to the anditor or to the collector for permission to redeem the land or pay the [385] taxes, it must be but equitable to restrict the recovery of the purchaser to the sum actually expended for the benefit of the owner, and which he would have been required to pay with interest thereon at six per cent per annum. In such cases the rule ought to be compensation only. We do not know what the facts of this case are in that respect, but we express the view which its circumstances have suggested to us for the guidance of the parties in the event such facts are shown in the further progress of the case, The decree is reversed, the demurrer overruled, and leave given the defendants to answer within thirty days after the mandate shall have been filed in the court below.