McClenden v. Whitten

Mates, T., delivered the opinion of the court. The agreed facts of this case show that a certain tract of land assessed to Mitchell & McClendon, a mercantile firm engaged in business in Tallahatchie county, was sold for taxes on the first Monday of March, 1905. At the date of the sale, and until the 31st day of December, 1907, Whitten, appellee, was the chancery clerk of the county. Though the property was assessed to, and sold as the property of Mitchell & McClendon, the tax title was allowed to mature without the chancery clerk giving the notice as required by section 4333, Code of 1906, though it is agreed that one Marshall, the deputy clerk of Whitten, gave to Mitchell, a member of the firm of Mitchell & McClendon, verbal notice of the sale at some time during the year 1906, the exact date at which this verbal notice was given not being specified, and at the time that Marshall gave this verbal notice it is agreed [128] that he was looking after the business interests of the firm. It is agreed that the failure of the chancery clerk to notify Mc-Clendon damaged him in the actual sum of $15, and that if he had received notice of the tax sale he would have redeemed the lands. On these facts being agreed to, McClendon brought suit to recover from the clerk his actual damage; the suit being begun in November, 1908, more than one year after the failure of the clerk to give the notice. The penalty provided by section 4333 is not claimed; it being conceded that McClendon is barred as to this under section 3101, Code of 1906. The court below held the clerk not liable and dismissed the suit, from which action an appeal is prosecuted. Section 4333 of the Code of 1906 requires the collector of taxes to “make a list of lands sold to individuals, in the same manner as required of lands sold to the state, which he shall file with the clerk of the chancery court, who shall record the same in a book to be kept for that purpose; and the clerk of the chancery court shall, within ninety days and not less than sixty days, -prior to the expiration of the time of redemption, if the owner of the land sold, either to individuals or to the state, be a resident of this state and the address known to said clerk, be required to issue notice to such owner in effect following, to-wit: 'State of Mississippi, County, of-. To —■—: You will take notice that -■ [here describe land] - land assessed to you or supposed to be owned by you, was, on the —■— day of —>—, sold to, — ,—} for the taxes of-[year]-} and that the title to said land will become absolute in —■—■ unless redemption from said tax sale be made on or before-day of-.’ And if said owner be a nonresident and his post office address be known, or can be ascertained after diligent inquiry, the chancery clerk shall mail to him a copy of the above required notice and note the mailing thereof upon said list, for which he shall be allowed fifty cents, and the sheriff shall be required to serve such personal notice as summons issued from a court are served, and make his return to the chancery clerk. * * * If the clerk [129] or sheriff shall fail to perform the duties herein prescribed, he shall be liable to the party injured by such default in the penal sum of twenty-five dollars, besides the actual damages sustained.” It is not pretended that the clerk attempted any sort of compliance with the requirements of this statute. Of course, it was not necessary for the clerk to make an investigation of the records to find out who, in truth, was the real owner of the property; but he was only required to notify the persons assessed with the property at the time of its sale. But the clerk did not do this. Section 4333 imposes a very important duty on the clerk. It is designed to bring positive and direct notice to a defaulting taxpayer, wiithin a short time before the maturing of the tax title, that it is outstanding and will soon mature into a perfect title, so as to enable him to redeem. The statute is a most wholesome one, and should be strictly observed. The statute provides when the notice shall be issued, how it shall be served, and what kind of notice shall be given. No verbal notice answers the statute, unless accepted in lieu of the statutory notice, and there is no pretense that such was the case here, or that the notice verbally given by Marshall was intended as the notice required under the section. On the contrary, as to this, it appears that Marshall was not acting for the clerk, but was an employe of Mitchell & McClendon in looking after their interests. Liability under this statute for actual damages can be escaped only by a compliance with the statute, by giving written notice as required, unless the defaulting taxpayer waives the notice. There is but one penalty provided by the statute, and that is for the recovery of the “penal sum of twenty-five dollars” for a failure to perform the duty required, and as to this “penal sum” there can be no recovery after one year, because of section 3101; but not so as to the recovery of actual damage. The right to sue for the recovery of actual damage is not affected by the one-year statute, since this is not in any true sense any part of the penalty [130] provided by tbe statute. Tbe actual damage is for tbe breach of official duty, aud the statute warrants a recovery for this, though the penalty be barred. Reversed and remanded.