Erwin v. Lee

Stevens, J., delivered the opinion of the court. Appellees, claiming to be tenants in coimnon of and owners of certain lands situated in Lincoln county, exhibited their bill of complaint against appellant as defendant in the court below, praying for the cancellation of a tax deed executed by the sheriff and tax collector to appellant April 1, 1912, in satisfaction of the unpaid taxes for the year 1911. The defendant answered the bill, and made his answer a cross-bill and prayed that his tax deed be confirmed as against the original complainants. The court decreed in favor of the complainants, and dismissed the cross-bill, and from his action in so doing appellant prosecutes this appeal. In decreeing for the complainants the chancellor directed that they should “pay the defendant the purchase — 204 — money and all taxes paid by him on said lands, same to be determined later.” The pleadings and proof show that the lands in controversy were sold to one F. 0. Conant, April 4, 1910', for the unpaid taxes of 1909; that the tax collector’s deed to Conant was duly executed and filed with the chancery clerk; and that in January, 1912, one Wells, the agent of appellees, went before the chancery clerk and redeemed the lands from the 1910 sale, and the chancery clerk thereupon marked the Conant tax deed canceled and delivered it complainants ’ said agent. On the back of this canceled tax deed was what purported to be an itemized statement of each item of charges and taxes going to make up the full amount of twenty-eight dollars and thirty-six cents, paid by Wells to the clerk, and embrased in the itemized list are the words and figures, “Tax for 1911, seven dollars and eighty-eight cents.” As a matter of fact complainants’- agent did not pay to the clerk the taxes for 1911, but did pay the taxes and damages for the year 1909, the year for which the land was sold, and did pay the tax for 1910'. Neither the owners nor the chancery clerk paid to the tax collector the taxes duly’ assessed on the lands for 1911, .and, these taxes being unpaid, the tax collector advertized and sold the lands in April, 1912, for the unpaid taxes of 1911, and appellant at this sale appeared and bought in the lands and received the tax collector’s deed executed in due form. This is the deed which is now the subject of attack in this suit. Appellees rely upon sections 4338, Code of 1906, being section 6972 of Hemingway’s Code, and 4340, Code of 1906, being section 6974 of Hemingway’s Code. These sections read as follows: “The tax collector shall file all conveyances of land sold to individuals in the office of the clerk of the chancery court of the county, on or before the first Monday of May, there to remain for two years from the day of — 205 — sale, unless the land be sooner redeemed; and the owner of the land or any person for him, may redeem the same within two years by paying the clerk, regardless of the amount of the purchaser’s bid at the tax sale, the whole amount of tax for which the land was sold, with all costs and charges consequent upon 'the sale, and twenty-five per centum damages upon the amount of tax, and all costs, and also all state and county taxes that have accrued on the land since the sale, and also five per centum on the whole amount of the redemption money; to infants and persons of unsound mind whose lands may be sold for taxes, the right to redeem the same within two years after attaining full age or sanity, from any purchaser thereof on the terms herein prescribed, and' on their paying the value of any permanent improvements on the lands made after the expiration of two years from the date of the sale of the lands for taxes.” “6974. On payment of the redemption money, the clerk shall indorse on the conveyance the word ‘cancelled,’ and sign his name thereto, with the date ■and amount paid, and shall also enter on the conveyance a statement of each item of charge, making up the aggregate amount paid; and he shall also note each redemption on his register, -with the date and amount paid. The clerk shall pay over the amount received by him to those entitled to receive it, and for a failure shall be liable on his official bond. All of such conveyances not canceled as above provided, shall be delivered to the persons entitled to them after two years from the date of the sale of the land conveyed.” It is contended that these statutes make it the duty of the chancery clerk to specify each item of charge necessary to redeem from any particular tax sale, and that the canceled tax deed, specifying on the back thereof these separate items of charge, constitutes a receipt in favor of the complainants for the taxes for the year 1911; that it is the duty of the chancery clerk to — 206 — collect “all state and county taxes that have accrued on the land since the sale,’’and that under the proven facts there is a conclusive legal presumption that the chancery dark did in fact receive the taxes for 1911, and that no tax was therefore due on the lands when the tax collector offered them for sale. It is furthermore contended that, even though the taxes were not in fact paid to the chancery clerk, complainants' were misled by the action of the clerk in making this notation on the back of the canceled tax deed, and that, complainants having been misled, and believing that the tax had been paid for the year 1911, the tax deed in question should be canceled. It appears that the agent, Wells, had died prior to the institution of this suit, and that his testimony was not available. The chancery clerk testified that Mr., Erwin, the appellent in this suit, in fact paid the taxes of 1910, seven dollars and ten cents, and that in redeeming the lands Mr. Wells paid by way ■ of refund this amount of taxes for the year 1910, but that the taxes for 1911 were not in fact paid either to the chancery clerk or his deputy, the clerk, on the contrary, saying: “It was not the custom in redeeming a piece of land. . If you would come in to redeem a piece of land now, I would not collect the taxes for this year. I would only collect the taxes that had already •been paid. ... If the party who bought the land had paid the taxes I would collect it. But if the owner of the property had come in and paid in the meantime I would not collect it.” If affirmatively appears that the state and county taxes for the year 1911 were not in fact paid, and there is no question about the manner in which the tax collector proceeded, or of the time at which or the plane where he made sale of these lands in 1912. The sole question is whether he should have sold the lands at all in April, 1912. The lands were duly — 207 — assessed, on the assessment roll, and the official tax receipt was not taken out by the tax collector and delivered to the owners of the land or to the chancery clerk. The sheriff proceeded in good faith to make sale of lands, which according to his records were delinquent. Appellant,' Erwin, in good faith appeared at the sale and bought in the premises. Under the pleadings and the undisputed testimony we see no infirmity in appellant’s tax deed. There is very naturally some confusion about the true interpretation of that portion of section 4338, Code of 1906, making it the duty of the owner in redeeming to pay the clerk “all state and county taxes that have accrued on the land since the sale.” This section must be construed in connection with our other revenue statutes, and when this is done we believe the legislative intent is clear. This statute means, and is bound to mean, that the owner, when redeeming, must pay the chancery clerk all taxes which have accrued on the land and which have been actually paid by the purchaser and for which the official tax collector’s receipt has been issued. When lands are sold for taxes and struck off to an individual, they are not removed from the field of assessment and taxation. The same lands remain liable for the taxes accruing annually thereafter. In this regard there is a distinction between lands purchased at tax sale by individuals and lands purchased by the state. Section 4356, Code of 1906, expressly declares: “Land purchased by the state for taxes shall not again be sold for taxes until redeemed.” But the sale of these lands to Conant in 1910 did not release the owners from the duty to pay the taxes for 1910 and 1911. They did not in fact pay the tax collector for either' of these years. It appears that Erwin paid the taxes for 1910, and that Wells, complainants’ agent, thereafter refunded this amount by — 208 — paying the same over to the chancery clerk when he redeemed from the Conant sale. No one either paid or tendered to the tax collector the required tax for 1913, and, this being so, it was the plain duty of the sheriff, under other statutes regulating and prescribing his duties, to proceed to sell the lands in April, 1912. These statutes under review nowhere authorize the chancery clerk in the first instance to receive taxes due upon real estate, and to issue in exchange therefor an official receipt. This duty .is devolved expressly and solely upon the tax collector, and in the discharge of this duty the tax collector must use a prescribed receipt executed in duplicate, and section 4322, Code of 1906, provides that “any other receipt shall not be valid as evidence.” It is not necessary for us to decide that the chancery clerk might not require the owner of land to pay the taxes that have accrued since the sale and are still unpaid as a condition of redemption, although this is indeed very doubtful. This exact point is not now presented. Surely some one must go to the tax collector and pay or legally tender the amount of taxes. In many cases there is no redemption, and certainly the tax collector is not required and is nowhere authorized, to withhold delinquent lands from the annual tax sale or to postpone such a sale to ascertain whether the owner will redeem from a prior tax sale. As stated, lands sold for taxes to an individual remain for two-year period allowed for redemption subject to assessment and sale just as if they had not been previously sold, and the duty is upon the tax collector to see that the taxes are in fact paid annually. Any other plan would throw our fiscal affairs into confusion. The current expenses of the government must be met as nearly as possible by an annual income. It appears that the memorandum on the hack of the Conant canceled tax deed was not in fact signed by the chancery clerk, and proper investí — 209 — gation would have revealed the fact that the taxes for 1911 were then due and unpaid and that no one had received from the tax collector the official receipt. It is not expressly shown that appellees were by this memorandum thrown off guard, or misled, although they some time afterwards received from their agent, Wells, the canceled tax deed. Even if they were misled by this memorandum, it is their misfortune. There must be an actual payment or tender of the amount due. It follows from the views expressed that the tax deed of appellant is good and valid, and that the decree of the learned chancery court must be reversed. There is no occasion to remand the couse, and decree will be given here in favor of appellant, confirming his title. Reversed, and decree here for appellant.