Womack v. Central Lumber Co.

Anderson, J., delivered the opinion of the court. Apellant, W. H. Womack, filed his bill in the chancery court of Franklin county against the appellee, Central Lumber Company, seeking to confirm his tax title to a piece of land situated in that county. The cause was heard by the court on bill, answer and proofs and a decree rendered dismissing the appellant’s bill, from which he prosecutes this appeal. Gne question involved is whether appellant’s tax deed is void because the tax collector, in making the sale, failed to comply with that provision of section 4328, Code of 1906 (Hemingway’s Code, section 6962), which requires that in making such sales the tax collector shall first offer forty acres, and, if the parcel so offered does not produce’ the required amount, then he shall add another similar subdivision, and so on until the requisite amount shall be bid, or the land constituting one tract and assessed as the property of the same owner, be offered. The land involved here consisted of more than one hundred acres and was assessed to “unknown” and in the first instance was offered and sold in its entirety without first having been offered in subdivisions as required by the statute. Appellant contends that the failure of the tax collector to comply with the statute in that respect did not render the sale void. This contention is based on a clause in said statute as well as one in section 4332, Code of 1906 (Hemingway’s Code, section 6966). The clause in the first section referred to is in this language: [214] “But neither a failure to advertise nor error in the advertisement, nor error in conducting- the sale, shall invalidate a sale at the proper time and place for taxes, of any land on which the taxes were due and not paid; but a sale made at the wrong time or at the wrong place shall be void.” The clause of the statute relied on in the other section referred to is in this language: “Which conveyance shall vest in the purchaser a perfect title to the land sold for taxes, subject to the right of redemption; and no such conveyance shall be invalidated in any court except by proof that the land was not liable to sale for the taxes, or that the taxes for which the land was sold had been paid before sale, or that the sale had been made at the wrong time or place.” There is a good deal of force in appellant’s contention that by those provisions of the statute the legislature prescribed the only grounds upon which a tax title might be invalidated, and therefore any and all' other grounds were excluded. In other words, that the legislature intended to provide and did provide that tax titles should not be invalidated by the courts upon any other grounds than some one or more of the grounds set out in the statute. However, this question is foreclosed against the contention of appellant^by several decisions of this court.’ Griffin v. Ellis, 63 Miss. 348; Herron v. Jennings (Miss.), 31 So. 965 (not officially reported); Herring v. Moses, 71 Miss. 620, 14 So. 437; Nelson v. Abernathy, 74 Miss. 164, 21 So. 150; Stevenson v. Reed, 90 Miss. 341, 43 So. 433. It Avas held in the Griffin ease, supra., that these proAdsions of the law were not intended to apply to the fundamentals of tax sales; that they were not intended to prevent those attacking such sales from showing a total departure from the statutes governing the assessment and sale of lands for taxes; and, as illustrative of this vieAV, the court in its opinion referred to Stovall v. Connor, 58 Miss. 138, holding that a tax sale was invalid when the assessment roll Avas not returned at the time prescribed by Iuav; and McLeod v. Burkhalter, 57 Miss. 65, where the tax collector purchased at his own sale; [215] and Smith v. Nelson, 57 Miss. 138, where the taxes were levied at a meeting- of the hoard not authorized by law; and Davis v. Vanarsdale, 59 Miss. 367, where the board had failed to make an order approving the assessment roll; and Dingey v. Paxton, 60 Miss. 1038, for uncertainty in description of the land. The provisions in question of section 328, Code of 1906 (Hemingway’s Code, section 6962), and section 4332, Code of 1906 (Hemingway’s Code, section 6966), are exact re-scripts of similar provisions of the corresponding sections of the Code of 1880, sections 521 and 525, and the Code of 1892, sections 3813 and 3817, except that to section 521, Code of 1880, as brought forward in the Code of 1892 and in the Code of 1906 there is added this language: “Nor error in conducting the sale.” Appellant contends that by this language the defenses which might be made against a tax deed were further narrowed. However, all of the cases above referred to, except Griffin v. Ellis, seem to have been decided after the adoption of the Code of 1892 and were governed by its provisions. In none of those cases was any significance given to the added language referred to. These statutes thus construed by the court as they appeared in the Code of 1892 were re-enacted by the legislature in the Code of 1906, presumably with full knowledge of such construction. We are unable to see how such a construction will lead to mischievous results. We decline therefore to overrule Griffin v. Ellis, supra, and the cases following it. The disposition made of this question renders it unnecessary to notice the other questions argued. Affirmed.