Paxton v. Valley Land Co.

Campbell, J., delivered the opinion of the court. Sections 5 and 6, the subject of this suit, were acquired in fee-simple by the appellant in 1846, and belong to him now, if his title has not been divested. The lands were in their natural state, undisturbed by man, without any sort of occupancy until 1888. Because of their liability to inundation from the Mississippi river annually, they were esteemed of little value, comparatively, and unsuited to cultivation until the past few years, during which the levees have given promise of protection; and because of this they were not settled upon; and during all these years the taxes on them were not paid. In the early part of the year 1888, the appellant made an actual entry upon the land, and commenced to improve it, by clearing and building, and about that time A. G. Paxton, son of the appellant, applied to the auditor of public accounts to purchase or redeem the land, offering to pay any dues, in order to effect this ; and he was informed that the state did not claim the land, and [745] thereupon he petitioned for a mandamus to compel a conveyance by the auditor, which proceeding having begun is still pending, not having been actively prosecuted. Because of the non-payment of taxes, in 1859, section five was sold for taxes, and conveyed to "Whitehead; and, in 1860, part of section six was sold and conveyed to the treasurer of the levee board, and on July 1, 1867, both sections were sold for taxes, and conveyed to the state of Mississippi; and on May 11, 1870, both sections were sold for taxes, and conveyed to the levee board; and October 3, 1881, they were sold and conveyed by the commissioners invested with the title of the levee board, and acting in accordance with a decree of the chancery court of Hinds county, in the case of Joshua Oreen and others against Hemingway and Gibbs, to E. C. Gordon, who conveyed them to Evers, who conveyed to Burroughs, who conveyed to Prentiss, who conveyed to Mrs. Prentiss, who conveyed to the appellee. In March, 1883, these lands were sold for taxes, delinquent for 1882, and conveyed to the state of Mississippi; and, in May, 1884, the auditor of public accounts executed a qrdt-claim of the title of the state to these sections of land to Evers, in pursuance of an act of the legislature of Mississippi entitled, “ An act for the benefit of purchasers of levee lands,” etc., approved March 14,1884, acts, p. 182; and, in August, 1888, the auditor, acting in obedience to an act entitled, “ An act to quiet and settle the title to certain lands,” etc., approved March 2, 1888, acts, p. 40, executed a deed conveying to George Prentiss (named above) the state’s title to the above described lands. On March 1, 1875, was approved an act, familiar to the bench and bar of this state, by the name of the “Abatement Act,” acts of 1875, p. 11. The two sections involved in this suit being held by the state for taxes by its purchase July 1, 1867, were subject to the provisions of that act, and liable to be sold under it, but were not sold. The appellee (complainant in the suit) has vested in it whatever title the commissioners of the levee board or the state of Mississippi could convey by their several conveyances; and the important question is whether either had a title to transmit ? The tax-deeds of 1859 and 1860 may be dismissed from consideration. If those [746] sales were void, as claimed by Paxton, as probably they were, that disposes of them, but, if valid, the subsequent sale to the state, July 1, 1867, renders their further consideration unnecessary. The title acquired by the state by the sale July 1, 1867, was perfected by the lapse of five years from the date of the sale, by virtue of the act entitled, “ An act to provide for the better security of titles to lands held and claimed under tax sale and tax-titles,” approved February 10, 1860. Acts 1859-60, p. 213, § 8; Sigman v. Lundy, 66 Miss. 522. The sale for taxes in 1870 to the levee board need not be further considered. If void, as affirmed by the appellant, that disposes of it; and if valid or, if the perfecting effect of five years after the sale, by virtue of the act of February 10, 1860, be ascribed to it or, if the completion of the five years, whereby the state’s title acquired July 1, 1867 was rendered unassailable, operated as a merger of the claim of the levee board by its purchase May 11, 1870, the result is the same. If the levee board had title, or if the state had, the appellee acquired it. The abatement act did not, by its mere approval, divest the title of the state or levee board. It does not release title. It abates or remits all taxes for years prior to 1874, and where land was dealt with and disposed of under it, any former title of the state or levee board was gone, but if from any cause land held and subject to disposition under this act was not disposed of, it was unaffected, and continued to be held as before. The purpose of the act was to induce delinquent owners to pay one year’s taxes as the price of relinquishment of all claim on the land for the past, failing in which the land was to be sold as prescribed, but the state did not, by this act of grace, renounce its title or reinvest the delinquent owner with it. It sought to induce him, by liberal terms, to come forward and pay the small part due for years of delinquency, and declared a purpose to sell the land and acquire a new title, if he did not pay, as proposed, but he could not claim anything, by virtue of the act, except by compliance with its terms. The title of sections five and six was not affected by the abatement act, and remained as before. The liquidating levee commissioners, exercising their power under the law, and with the sanction [747] of the' chancery court, which had intervened, in the interest of creditors in Gibbs v. Green, 54 Miss. 592, sold and conveyed the two sections on October 3, 1881, to Gordon, as stated above, and he conveyed to Evers, who failed to pay taxes for 1882, and the lands were sold to the state for this delinquency March 5, 1883, and were afterwards, in 1884 and in 1888, severally conveyed by the state, through its auditor of public accounts, for the purpose plainly declared by the acts authorizing the conveyances, of perfecting the title acquired by the conveyance of the levee commissioners. The tax sale of March 5, 1883, was void according to the averment of the appellant, and the purchase by Evers, and the conveyance to him by the auditor, the appellant claims, was a redemption of the land. Accepting these views, it follows that the tax sale of 1883 may be put entirely out of view, and that by the combined operation of the conveyances of the levee commissioners and the auditor of public accounts, the appellee got a perfect title to these lands, which were lost to their former owner, the appellant, by his delinquency in not paying the taxes on them. The defense of the statute of limitations of ten years, invoked by the appellant, is effectually disposed of by the fact that until 1888 he had no such possession of the land or any part of it as to set the statute in motion. Tush-Ho-Yo-Tubby v. Barr, 41 Miss. 52. The conveyance by the auditor, under the act of 1884, was not invalid for failure to collect taxes for 1881 on the land, for none were due; and § 562 of the code of 1880 has no application to the deeds by the auditor under the acts of 1884 and 1888. It applies to conveyances contemplated by § 561. Ve fail' to discover how the several decisions of this court, set forth in the answer of the appellant to the bill, cab avail anything in his behalf in this case. It is his misfortune not to have anticipated the announcement in Sigman v. Lundy, plainly foreshadowed by earlier decisions, in time to have prevented the bar of five years, by paying what was required to clear his title, but this court was not precluded from applying a statute designed for the purpose to the cure of irregularities in a tax sale, because of the fatal effects on delinquent land owners, who for years experimented as to the value [748] of tax sales. Sigman v. Lundy is new in tbe instance merely, not in principle. It did not overrule any former decision or announce any new principle or contravene any judicial utterance. It for tbe first time declared tbe effect of tbe act of February 10, 1860, and applied it, because never before had the court been called on to do so. We regret that during the many years elapsed, and the many opportunities afforded, the owner did not free his lands from all claim, except his own, but the title, lost by delinquency and neglect, has been securely vested in another, and it must be upheld. Affirmed.