Summary
In Boyle, the Court held that, because the tax collector had not violated the tax-sale list procedures under Section 27–41–79, that statute was inapplicable to the facts.
Summary of this case from Booneville Collision Repair, Inc. v. City of BoonevilleOpinion
No. 35633.
May 22, 1944.
1. TAXATION.
The Code provision imposing liability on tax collector for sale of land for taxes after he has received taxes due thereon gives relief only to immediate tax purchaser and owner, and does not apply to a remote purchaser, and hence does not entitle such remote purchaser to recover on tax collector's bond (Code 1942, sec. 9925).
2. TAXATION.
The Code provision that sheriff or clerk shall be liable on his bond for actual damages caused by his default in performing duties therein prescribed, which deals solely with requirement that tax collector shall transmit to clerk a certified list of lands sold by him for taxes and that clerk shall record it in book kept for that purpose, does not apply to action by remote tax purchaser to recover on tax collector's bond for moneys paid out on a title and spent for improvements because land on which taxes had been paid in full was improperly sold for taxes, where there was no default in transmitting tax list (Code 1942, secs. 9935, 9936).
3. OFFICERS.
Where duty imposed on officer is one solely to public, failure to perform it, or erroneous or negligent performance, is deemed injury to public and not to individual member of public, and an individual harmed thereby may not have redress against officer unless individual had in it such a direct and distinctive interest as to set him apart from all others of the public in respect thereto, and fact of injury does not in itself make out such direct and distinctive interest.
4. TAXATION.
Where tax collector made out and filed certified list of lands sold for taxes to individuals, he was performing a duty solely for public, and remote tax purchasers who examined such list and relied thereon in purchasing land had no interest distinct from that of others of public, and therefore could not recover on tax collector's bond because taxes on land so purchased at tax sale had been paid by owner (Code 1942, secs. 9935, 9936).
APPEAL from the circuit court of Coahoma county, HON. ED H. GREEN, Judge.
W.W. Venable, of Clarksdale, for appellants.
It is the general rule that a public officer is answerable to private persons who sustain damage resulting from the negligent performance of the officer's ministerial duties.
See brief notes: 16 A.L.R. 852; 18 A.L.R. 197; 39 A.L.R. 1306; 40 A.L.R. 39; 57 A.L.R. 1037; 90 A.L.R. 1482; 94 A.L.R. 1303.
The registrar of deeds, being a ministerial officer, is liable at common law, in the absence of an express statute, to an action for damages caused by his negligent performance of the duties of his office.
State v. Walters, 31 Ind. App. 77, 95 Am. St. Rep. 85; Rising v. Dickinson, 18 N.D. 478, 99 Am. St. Rep. 244; 138 Am. St. Rep. 799; see note 94 A.L.R. 1303.
It is the duty of the tax collector by statute to file in the office of the chancery clerk a list of lands sold for taxes.
Code of 1942, Secs. 9935, 9936.
By both of these sections it is expressedly provided that if the sheriff or clerk should fail to perform the duties prescribed in said section, he shall be liable to the party injured by such default in the penal sum of $25 and also on his bond for the actual damages sustained.
It is thus seen that under the common law and by the statutes cited, the tax collector and sheriff is liable in damages to a party injured by his negligent failure to record a proper list of lands.
It is said, however, that they cannot recover this, for if they had gone into the sheriff's office and had examined the tax receipts they would have found that the taxes had been paid and that the certificate was false. This position in our opinion is not tenable. In the first place, to adopt it is to say that those interested in examining into tax titles cannot rely upon the certificate of the sheriff insofar as he and they are concerned. If this be true, there is no particular value to the filing of the list of lands sold for taxes in the office of the chancery clerk. Such filing is required obviously for the benefit of those who are interested in land titles. It is put there for their use and certainly upon the presumption that they can rely upon it. It is a public record and should import verity.
Another reason why defendants, Matthews and his surety, cannot object to the reliance of plaintiffs upon this list is because it contains his affirmative representation that the taxes were not paid and that the lands were sold for this reason. He and his surety are estopped on familiar principals of equitable estoppel. It is next urged that the plaintiffs cannot recover because they were guilty of contributory negligence. It is difficult for us to conceive how it lies in the mouth of the sheriff and tax collector to say that a person was guilty of negligence in relying upon his statement that the taxes had not been paid, and therefore the lands had been sold. Especially is this true where his statement is an official one and made with the purpose and intent that it shall be acted upon.
It is next contended that because by Section 9925, Code of 1942, if the tax collector sells any land after he shall have received the taxes due thereon, he shall be liable to refund to the purchaser the money paid and 25 percent damages and shall be liable to the owner for any expenses, costs, and damages sustained, no one else can recover. In other words, it is claimed that the force and effect of this statute is that only the purchaser at the tax sale and the owner of the property is protected against the damages due to the negligence of the sheriff and tax collector who is a ministerial officer. We reply to this that the statute, insofar as it announces liability, is but a rescript of the common law as we have pointed out and the only purpose of the statute was to fix the amount of damages which the purchaser should receive and likewise as to the owner. Unless it was intended by this statute to restrict the common law liability, it cannot follow that this statute prevented recovery by others who were injured by the negligence of the tax collector. The statute did not intend to narrow liability.
In considering this case we think it is to be borne in mind that the cause of action is founded upon the negligent breach of the duties of the sheriff, a ministerial officer, and no question is involved as to the right to recover because of a breach of covenant of a deed. Admittedly, the sheriff makes no warrant in his sale. Our suit is founded upon the proposition that the sheriff owes a duty to third parties dealing with the land, to file a correct list; that this duty was violated negligently and hence the cause of action arose. Roberson Luckett, of Clarksdale, for appellees.
A tax collector's liability for sale of lands on which taxes thereon have been paid is governed by Section 9925 of the Code of 1942.
Code of 1942, Sec. 9925; 77 A.L.R. 824; 116 A.L.R. 1408.
Sections 9935 and 9936 do not give Boyle and Summers a right to recover under the facts of this case. They require a tax collector, within the time therein specified, to file lists of the lands struck off by him to the state and that sold to individuals, with certain particularities, and provide that if the sheriff fails to perform such duties, he shall be liable to the party injured by such default in the penal sum of $25 and also on his official bond for the actual damage sustained. The tax collector did not breach the provisions of those sections. His list reflected the sale of the property to D. Seward in the manner suggested by the statute.
Seward's rights under Section 9925 have not passed to Boyle and Summers.
Henritzy v. Harrison County, 180 Miss. 675, 178 So. 322; Leavenworth v. Hunter, 150 Miss. 750, 117 So. 122; Code of 1942, Sec. 846.
Purchasers of tax titles are not purchasers for value without notice of defects in tax title.
Bruce Co. v. Smallwood, 188 Miss. 771, 196 So. 227; Roebuck v. Bailey et al., 176 Miss. 234, 166 So. 358; Code of 1942, Secs. 9907, 9911; 61 C.J., Taxation, par. 1859.
The doctrine of caveat emptor applies to purchasers of tax titles.
Wells v. Ellabee, 93 Miss. 268, 46 So. 497.
The taxes for the year 1937 on the lot here in question were actually and fully paid by the owner to Matthews, the tax collector, and the tax collector's official receipt therefor was delivered to her. Nevertheless, at the tax sale in 1938 for the delinquent taxes of the year 1937, the tax collector sold the lot to one Seward and thereafter transmitted to the chancery clerk the tax collector's list of lands sold to individuals as required by Section 3256, Code 1930, as amended, Sections 9935, 9936, Code 1942, whereby the tax collector certified, and for the public record, that the taxes on the lot had not been paid for the year 1937, and that, for and on account of the alleged delinquency, he had sold the lot to Seward.
Appellants desired to purchase the lot and employed an attorney to examine the title. Seeing the record of the tax sales to individuals as certified by the tax collector, and acting on the faith of said certified list, as is common in such cases, and the tax deed all in due form, the period of redemption having expired, the attorney reported the title good, and appellants purchased the lot from Seward, by a quitclaim deed, paying Seward therefor $150 in cash; and appellants thereupon made improvements on the lot in the sum of $200.50.
When shortly thereafter they discovered that the taxes had been paid and that they had obtained no title through the tax sale, they sued the tax collector on his bond for the $150 paid out on the title, and for the $200.50 spent for improvements. The trial court denied recovery, hence this appeal.
The tax collector has defended on the ground, among others, that Chapter 188, Laws 1934, Section 9925, Code 1942, covers the only liability imposed on a tax collector for the sale of land for taxes after he shall have received the taxes due thereon. This statute gives relief to none other than the immediate tax purchaser and the owner, and appellants are neither of these.
Appellants, in addition to other contentions, rely upon the above cited Section 3256, Code 1930, as amended, which provides that "if the sheriff or clerk 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, and also on his bond for the actual damages sustained." But this section deals solely with the requirement that the tax collector shall transmit to the clerk a certified list of the lands sold by him and that the clerk shall record it in a book kept for that purpose. There was no default here in transmitting the list; the land was sold and the list so shows; but the negligence was in the sale of the land when the taxes on it had been paid.
Neither of the cited statutes has application to the present case, and it not being necessary to decide whether they are exclusive, we will proceed to the common-law rule, which we now state.
When the duty imposed upon an officer is one solely to the public, the failure to perform it, or an erroneous or negligent performance, is regarded as an injury to the public and not to an individual member of the public; and an individual harmed thereby may not have redress against the officer unless the individual had in it such a direct and distinctive interest as to set him apart from all others of the public in respect to it, and the fact of the injury does not in itself serve to make out the direct and distinctive interest which is essential. 43 Am. Jur. Public Officers, Secs. 272, 279; 2 Cooley on Torts, 4th Ed., Sec. 300; Mechem, Public Officers, Secs. 672-674; Throop, Public Officers, Secs. 707, 708; 46 C.J., Officers, Sec. 329.
When the tax collector made out and filed the certified list of lands sold to individuals, he was performing a duty solely for the public, and no individual member of the public had any interest therein apart from all others of the public, save those whose lands were sold, and the immediate purchasers thereof. Appellants had no individual interest therein which was in any way different or distinct from that of others of the public; and the fact that appellants afterwards examined the list, as all others could do, and acted on it to their injury does not take them out of the rule, for, if so, the rule itself would disappear.
Statutes have been enacted in many states, and in various forms, to furnish some relief in cases which, under the common-law rule above stated, would be without remedy; and instances may be found where the courts have appeared inclined to seize upon slight distinctions to take the particular cases out of the rule, and, too, it may be that the rule as stated applies only to monetary as distinguished from personal injuries, as to which we have made no examination and express no opinion. We have referred to the only two statutes in this state which bear upon a tax collector's liability in cases of the kind here before us and have observed that neither of them applies to the present facts in so far as these appellants as remote purchasers are concerned.
It may be that the legislature has considered it unwise and impolitic to extend a tax collector's liability further than the two statutes which have been mentioned, and that as to negligent or erroneous conduct by the tax collector, other than as covered by the two statutes, the common-law rule ought to be allowed to stand — out of consideration of the difficulties in cases such as this of any just or practical measure of damages. Here a lot was sold and appellants as remote purchasers paid $150 for it. Suppose it had been worth, and was sold to the remote purchasers for $10,000, or even more, and suppose it had increased in value as time went on, and subsequent purchasers paid value. Some tax collectors in some years sell hundreds of lots or tracts. How far down the chain of results and of several chains for several sales shall the tax collector's liability follow, and how from time to time shall it be practically measured? This alone is sufficient to give pause, as to which see the comment in Gallaway v. Sheppard (Tex. Civ. App.), 89 S.W.2d 417, at page 418.
Affirmed.