Summary
In Kelly v. Coker, 197 Miss. 131, 19 So.2d 519 (1944) the taxpayers testified that they went to the chancery clerk's office on two occasions to pay the taxes and redeem their property.
Summary of this case from Levy v. McCayOpinion
No. 35663.
October 23, 1944.
1. EVIDENCE.
Where landowners testified that they went to the chancery clerk's office carrying money to redeem land from tax sale and that they told the clerk that they wanted to redeem and had the money to do so, but that clerk told them that there were no taxes due and that taxes were paid, and there was no testimony to contradict such statements, the chancellor was not justified in finding that there was no offer to redeem.
2. TAXATION.
An offer and request to redeem from tax sales when the party is ready and able to do so, where refused either arbitrarily or through unintentional misrepresentation of facts, took away from the state the power to convey the title to the property.
3. APPEAL AND ERROR.
Chancellor's decree holding valid a defendants' claim to land as an innocent purchaser was reversed and cause remanded as to such defendant, where the record failed to reveal material facts.
SMITH, C.J., dissenting in part.
APPEAL from chancery court of Lauderdale county, HON. D.M. ANDERSON, Chancellor.
J.E. Harwell, of Meridian, for appellants.
There was a tender of money on the part of the two appellants to the chancery clerk for the purpose of redeeming said property and they were refused the right to redeem said property by the chancery clerk.
Brannon v. Lyon, 86 Miss. 401, 38 So. 609; Stegall v. Miles, 194 Miss. 353, 12 So.2d 537.
V.W. Gilbert, of Meridian, for appellee, H.W. Burwell.
H.W. Burwell purchased the property in controversy at a tax sale. The purchase showed and the court found that this property was purchased because of failure to pay the taxes, but Burwell did not immediately get a title to the property until several years later. Burwell, after he had acquired title to this property, quitclaimed it to Coker, the other appellee. Burwell had no further connection with the matter after he conveyed to Coker. He seems to have been sued on a theory that he held title as some sort of trustee. We are unable to gather from the brief of appellants just what the theory is as to Burwell being a trustee. If appellants are correct, then the tax sale was void; if appellants are not correct, then the tax sale was valid. In neither event would there be any trust relationship created. If Burwell acquired no title at the sale, he then had no title to convey to Coker; if he did acquire title at the tax sale, his quitclaim deed to Coker conveyed that title. He had no further connection with the matter, he was neither a necessary nor proper party, there being no question of warranty involved, and there is no liability on his part to the appellants or to Coker; even if Coker were asserting any such claim, which he is not.
Snow Covington, of Meridian, for appellee, James Coker.
This case was submitted to the chancellor on oral testimony and on written evidence. The chancellor had a thorough presentation of the matter and decided the case on the facts. There is no legal error and there was and is ample testimony on which the chancellor's finding was based.
Argued orally by J.E. Harwell, for appellants.
Bill was filed by appellants to invalidate a tax deed to H.W. Burwell and a quitclaim deed from him to James Coker. No point seems to be made regarding the fact or regularity of the tax sale. We accept therefore the fact that the property in question was sold to Burwell in 1931 for delinquent taxes for the preceding year. Tax deed was delivered to him in 1936 and he executed deed thereto to Coker in 1939.
Two of the complainants testify positively that they went to the chancery clerk's office on two occasions carrying money to redeem the land from the sale. Each testified that their expressed purpose was to redeem it but that no each occasion the clerk told them "there was no taxes due on the place, it had been paid." He further told them that payment had been made by Burwell. They testified that they told the clerk they wanted to redeem it, and that they had the money to do so. It is abundantly disclosed that these owners knew of the necessity and procedure for redemption. In fact another tract was redeemed by them shortly thereafter and negotiations were sought to get a release from Burwell. The clerk had died in the meantime and there was no testimony to contradict or modify the foregoing positive statements. Under the circumstances, the learned chancellor was not justified in his finding that there was no offer to redeem. Tarver v. Lindsey, 161 Miss. 379, 137 So. 93. The offer and request to redeem when the party is ready and able to do so, where refused either arbitrarily or through unintentional misrepresentation of facts, took away from the state the power to convey the title to Burwell. McLain v. Meletio, 166 Miss. 1, 147 So. 878. See also Brannan v. Lyon, 86 Miss. 401, 38 So. 609. The tax deed to Burwell is therefore invalid.
Appellee Coker pleads rather informally his status as a bona fide purchaser from Burwell. This point is not argued by counsel, and is not here decided. The record is unsatisfactory in respect of certain relevant considerations, including the extent of occupancy of the lands by the original owners subsequent to the tax sale and prior to Coker's purchase; whether Coker would be or was in fact a bona fide purchaser without notice of appellants' claims or rights; and the extent of mesne profits from the use of the land by Burwell and Coker.
In this situation, the cause will be reversed and the sale as to Burwell set aside, but remanded as to the interest of Coker, if any, to be developed in the light of the views herein stated. Moore v. Sykes' Estate, 167 Miss. 212, 149 So. 789.
Reversed and remanded.
PARTIALLY DISSENTING OPINION.
I am of the opinion that a final decree should be here rendered cancelling the claims of both Russell and Coker to this land. Counsel for Coker do not claim in their brief that he was a bona fide purchaser of the land from Russell without notice of the appellants' offer to redeem it from the tax sale, if such there in fact was, to Russell, and if made, the contention should fail.
The offer of the appellants to redeem the land from the tax sale, if any, to Russell operated as a redemption from the sale. McLain v. Meletio, 166 Miss. 1, 147 So. 878, 879; 61 C.J. 1276, withdrew from Russell "the power to convey title to any one else," McLain v. Meletio, supra, restored the appellants to their "title as it stood before the sale," 61 C.J. 1287, and the "doctrine of caveat emptor applies to purchasers of tax titles," 61 C.J. 1328.