Bank of Indianola v. Dodds

Whitfield, C. J., delivered the opinion of the court. The breach of the bond in this case is manifestly the failure to pay to the purchaser the overbids when the redemptions occurred. There had been no redemptions of any of the lands sold in March, 1904, prior to the execution and approval of the bond upon which the appellant is the surety. All the redemptions in the case were effected during the early part of the year 1906, except one redemption in April, 1905. The appellee paid $1,364 to the tax collector in excess of the taxes, damages, etc., at the sale in March, 1904, and $2,513 excess over the taxes, etc., due at the sale in March, 1905. The amounts of these two overbids were never repaid to the purchaser, the ap [774] pellee. The chancellor rendered a decree in favor of the appellee, but denied interest on all amounts of overbids from the date of the redemptions of the lands, where the redemptions took place before the filing of the bill, the 11th of October, 1906, allowing interest, in such cases, only from the 11th of October, 1906, and also allowing interest on the amounts of overbids, where the redemptions occurred after the 11th day of October, 1906, from the dates of the redemptions of said lands, respectively. From this decree the Bank of Indianola, the appellant, prosecutes a direct appeal, insisting that it is not liable for any sums -representing overbids for lands purchased'in 1904, on the ground that the collections for the land sold in March, 1904, occurred before the execution of this present bond, the 7th of November, 1904. Certain sureties petitioned to be relieved from the first bond executed by the tax collector, and this present new bond was executed, with appellant as surety, on the 7th of November, 1904. The appellee prosecuted a cross-appeal from so much of the decree of the chancellor as denied him interest on the amounts of overbids, to be calculated from the dates of the redemptions, where such redemptions took place prior to October 11, 1906. The sections of the law involved are §§ 3819, 3820, and 3824 of the Code of 1892, which are respectively as follows: “Section 3819. Failure of Purchaser to Pay Bid. — If the purchaser of land at tax sale shall not immediately pay the amount of his bid, the collector shall offer the land again and if some person will not then bid the amount of the taxes, it shall be struck off to the state, as in other cases; but the first purchaser shall be liable for the amount of his bid, to be collected by suit in the name of the state; and, on the same being collected, the tax list shall be cancelled as to that land, and it shall be conveyed by the auditor to the person from whom the amount has been recovered. “Section 3820. Disposition of Excess in Amount of Bid.— If any land be sold for more than the amount of taxes due and [775] all costs, the excess shall be paid to the owner on demand, and the tax collector shall be liable on his bond therefor; but if the owner accept the excess, and afterwards redeem the land, from the tax sale, or defeat the tax sale in any way, or for any reason, he shall- stand debtor to the purchaser for the amount thereof, with ten per cent interest from the date of sale, and the land shall be charged with a lien to secure the payment of the same.” “Section 3824. Purchaser Entitled to Excess in Case of Redemption. — If the purchaser bid at a tax sale, - and pay over, a sum larger than the full amount of the taxes, damages, and costs, and the excess at the time of the redemption be in the hands of the tax collector, the same shall be refunded to the purchaser, and the collector’s bond shall be liable therefor. In such case, if only a part of the land be redeemed, the excess shall be apportioned ratably to the amount of taxes due at the time of the sale on the respective parts.” The contentions with respect to the liability of the appellee as surety are as follows: The appellant insists that the breach of the bond occurred when the tax collector collected the amount of the overbids on the two sales — the first amount of $1,364 in March, 1904, and the second amount of $2,513 in March, 1905 — and that consequently, of course, the appellant would only be liable as to the second overbid collected in March, 1905, and this it admits it is liable for. The appellee, on the other hand, insists, and manifestly correctly, that the breach of the bond never occurred, constituting the liability in this case, until the redemptions had been made, and it then became the duty of the tax collector to refund the amounts ofv the overbids to the purchaser. Undoubtedly this is the true view. The money remained in the hands of the tax collector from the dates’of the sales, and he owed no duty of refunding the amounts of the overbids until the redemptions occurred. The moment the redemptions did occur there arose the legal duty on the-part of the tax collector to refund to the purchaser [776] the amount of the overbids. Failing to so refund, he became then liable on the bond for such breach of its obligation then in respect to this particular liability for the first time having occurred. The decree on the direct appeal is therefore correct. The case of Lewenthal v. State, 51 Miss., 645, is not in point here. It relates to a different subject-matter. There is a very great difference between the duties of a tax collector in respect to repaying overbids by purchasers at tax sales and paying over and accounting for taxes collected by him in accordance with the provisions of law on that subject. See Metts v. State, 68 Miss., 132, 8 South., 390. The liability in this case arose when, the redemptions having been effected, the tax collector then failed immediately to refund to the purchaser the amount of his overbids, and this failure occurred after the execution of this bond. No breach of -the first bond occurred during the life of that bond. The only right of action which has ever arisen in this case is that in behalf of the appellee against the appellant and his defaulting principal for failing promptly to pay over to the purchaser the amounts of the overbids. With regard to the cross-appeal it will be carefully noted that sec. 3820, supra, expressly provides that if the owner of the land shall accept the overbid, thus taking and using it, he shall pay interest at the rate of ten per cent per annum; but if the' owner does not accept the overbid, and the amount of such overbid remains in the hands of the tax collector, sec. 3824 provides merely that the tax collector, when the redemptions shall have been effected, shall refund “the same” — that is, the amount of the overbid — to the purchaser. In other words, here are two statutes on the same subject-matter, one of which expressly provides for the payment of interest by the owner in case he takes and uses money,' and the other of which expressly declares that the tax collector shall refund to the purchaser, where he keeps the money, only the amount of the overbid, saying nothing about interest. The tax collector cannot use the money as the owner might. He is to keep the [777] money during the period of redemption, and, when' redeemed, refund on demand the money thus kept on deposit. We do not think it was the intention of the legislature to require the'payment of any interest on overbids, where the amounts of such overbids have merely remained in the hands of the tax collector, without having been.used by him in his business. The scheme of the law is that the amount of such overbids shall remain simply on deposit with the tax collector to await the contingency of redemption. It is not intended that the tax collector shall use this money, and for that reason it was not provided by law that any interest should be paid on overbids to the purchaser when the lands are redeemed. We think the learned chancellor was correct in all respects in his decree, and it is affirmed, both on direct and cross appeal. Affirmed.