Opinion
No. 32328.
October 19, 1936.
TAXATION.
Tax deed executed by chancery clerk showing on its face that land conveyed had not been sold at time required by statute held invalid, notwithstanding statutory provision that tax collector's deed should be prima facie evidence of validity of sale (Code 1930, secs. 1578, 3249, 3273).
APPEAL from circuit court of Tishomingo county. HON. THOS. H. JOHNSTON, Judge.
Clark Clark, of Iuka, for appellants.
It is true that a tax deed is prima facie evidence of legal assessment and sale as held by Jones County Land Co. v. Fox, 120 Miss. 798, 83 So. 241, but when proof is shown that there was no legal assessment or legal sale then the prima facie evidence fades away.
Section 3249, Code of 1930; Byrd v. McDonald, 28 So. 847.
Section 3249 absolutely fixes the date of sale for delinquent lands to be sold for taxes and fixes it on the first Monday of April. The deed introduced by appellee shows on its face that the tax collector sold the land on the 4th day of May A.D. 1931, and when this deed was introduced which showed that the sale was not made on a day fixed by the statute then the prima facie evidence as to the day of sale faded away. C.B. Wright, of Belmont, for appellee.
A point raised by the appellants is the land being sold on May 4, 1931, which was not at the regular time prescribed by statute for the sale of delinquent lands for taxes; that when the appellee introduced said tax deed that our prima facie case faded away, and cites to support their contention Byrd v. McDonald, 28 So. 847. My contention is that this case has no bearing on the case at bar; because in the case cited there was a bill filed in chancery and on reading the facts of the case of said bill the complainant alleged that the land was sold on the third day of August, 1874, and never alleged that the same was a legal and valid sale. And on demurrer the court held that what was alleged showed that the sale was not a legal one. On filing a bill in chancery the complainant must allege or plead the matter or matters to bring the entire case, and state sufficient facts to show that he has got a case in clear, concise and accurate statements. The mere flat statement that lands were sold on the third day of August, 1874, does not state a cause of action, and that was what happened in the case of Byrd v. McDonald, 28 So. 847.
A conveyance made by a tax collector to an individual purchaser of land at a sale for taxes, and the list of lands sold to the state at such sale, shall be prima facie evidence that the assessment and sale of the land were legal and valid.
Section 1578, Code of 1930; Jones County Land Co. v. Fox, 120 Miss. 798, 83 So. 241; Alvis v. Hicks, 150 Miss. 306, 116 So. 612.
I contend that it would be folly for the court to hold that the very tax deed that the statute says when introduced makes out a prima facie case that the same instrument on its face fades away said prima facie case, that it (the tax deed) makes out.
My contention is that when the appellee introduced his tax deed that made out his prima facie case, then the burden was on the appellants to show that the same was not a valid tax deed. To hold otherwise would do away with the above statute, section 1578, Code of 1930, and defeat the very purpose of the Legislature when they enacted said law.
The appellants were defendants in an ejectment suit instituted against them by Dr. K.F. McRae, the appellee, and adverse judgment was rendered against them, from which they prosecute this appeal.
The land in controversy consisted of several lots in the town of Belmont. To maintain his suit the appellee offered in evidence letters patent showing title out of the United States, a plat of the town of Belmont, and a certified copy of a deed on record in the chancery clerk's office in that county. The deed is as follows:
"Chancery Clerk's Conveyance "Land Sold for Taxes.
"State of Mississippi, County of Alcorn.
"Be it known that C.L. Pace, Tax Collector of said County of Tishomingo did, on the 4th day of May, A.D., 1931 according to law, sell the following described land, situated in said county assessed to Mrs. Mildred Bailey, to-wit:
"Lots 12, 13, 14, 15, 16, Block 10, Belmont.
"For the Taxes assessed thereon, for the year A.D. 1930 when Dr. K.F. McRae became the best bidder therefor, at and for the sum of Thirty Seven and 89/100 Dollars, ($37.89) and the same not having been redeemed, I therefore sell and convey said above described land to the said Dr. K.F. McRae.
"Given under my hand and official seal of office this the 7th day of Jan. A.D. 1933.
"C.L. Pace, Chancery Clerk.
"State of Mississippi, County of Tishomingo.
"Personally appeared before me, the undersigned authority of law in and for the County and State, who acknowledged that he signed and delivered the foregoing instrument on the day and year therein mentioned.
"Given under my hand and official seal of office this the 7th day of June, 1933.
"Ollie Adams, Clerk."
At the close of appellee's evidence both the appellants and the appellee requested the court to grant them a peremptory instruction. The court granted the request of the appellee, and that action is assigned as error.
The argument for reversal is based upon two grounds: (1) That the deed "is not a tax collector's deed because as shown by the acknowledgment it does not show that anyone acknowledged the deed whatsoever and no one acknowledging the deed it was not an instrument subject to be recorded, and the appellee therefore acquired no title whatsoever by virtue of the purported deed;" and (2) that the deed shows on its face that the lands it purported to convey were sold on the 4th day of May, A.D., 1931, being a day other than that fixed by law for the sale of land for taxes.
It will be observed that the acknowledgment of the deed above set forth does not show that any one appeared before the officer before whom the instrument was acknowledged. We may leave out of view the defective acknowledgment as the decision of the case rests, in our judgment, on the fact that the deed as introduced was invalid and conveyed no title.
Section 3249, Code of 1930, provides how sales of land shall be made for delinquent taxes, and states that the sale there provided for shall be made on the first Monday of April. The lands here in question were sold, according to the recital of the deed, on the 4th day of May, 1931. Among other provisions found in section 3249 is the following: "But a sale made at the wrong time or at the wrong place shall be void."
Section 3273, Code of 1930, provides that the conveyance to individuals purchasing land at tax sales shall be executed by the chancery clerk, and that said conveyance shall vest in the purchaser a perfect title with the immediate right of possession to the land sold for taxes, 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. This court has frequently held that a deed which shows that the sale was had at the wrong time is thereby rendered invalid. McGehee v. Martin, 53 Miss. 519; Mead v. Day, 54 Miss. 58; Harkreader v. Clayton, 56 Miss. 383, 31 Am. Rep. 369; and Byrd v. McDonald (Miss.), 28 So. 847.
The appellee argues that section 1578, Code of 1930, makes the deed prima facie evidence of its validity. That section is as follows: "A conveyance made by a tax-collector to an individual purchaser of land at a sale for taxes, and the list of lands sold to the state at such sale, shall be prima facie evidence that the assessment and sale of the land were legal and valid." If it may be said, although unnecessary here to decide, that the above prima facie statute applies to a chancery clerk's deed made in pursuance of a tax collector's sale, still the statutes render any deed invalid wherein the sale upon which it is predicated was made at the wrong time by the tax collector. This deed recited a date of sale other than that provided for by the statute, and made complete the appellants' proof of such invalidity. If the sale had been continued by the sheriff from day to day, as provided in section 3249, or if the board of supervisors had entered an order directing the sale of lands not sold at the regular time to be sold on another day, as provided by section 3252, then it would have been incumbent upon the plaintiff in ejectment, the appellee here, to make such proof. See Mead v. Day, supra, wherein it is said that such contingency should have been averred or proved. The precise point was decided adversely to appellee in Johnson v. Lake, 162 Miss. 227, 139 So. 455, 88 A.L.R. 262.
We do not think the case of Alvis v. Hicks, 150 Miss. 306, 116 So. 612, wherein a list of lands was offered in evidence and held to be sufficient to establish the title of the city to the lands sold to it, is applicable here. The list of lands contained no statement as to where the sale was made. In this case the deed was invalid on its face.
Reversed, and judgment for the appellants.