Summary
In Roebuck v. Bailey, 176 Miss. 234, 166 So. 358 (1936), Bailey executed a deed of trust on his real property to the Bank of Union. The acknowledgment to the deed of trust showed on its face that it was taken in Newton County before a Newton County Notary Public. Afterwards, Bailey failed to pay taxes on the property, and it was sold at a tax sale to Kent. Before the property was sold to Kent, however, the Chancery Clerk failed to perform his statutory duty of notifying Bailey and the Bank of Union of the tax sale.
Summary of this case from Mills v. Damson Oil CorpOpinion
No. 32235.
May 4, 1936.
1. VENDOR AND PURCHASER.
Acknowledgment of deed of trust taken before notary public not acting within county of his appointment is void as to bona fide purchasers of mortgaged realty.
2. TAXATION.
Failure of tax collector to sign and certify tax list did not invalidate tax sale (Code 1930, sec. 3256).
3. TAXATION.
Tax collector's tax list and receipt of tax sale to purchaser held sufficient evidence of sale to vest title in purchaser, subject to right of redemption, notwithstanding that tax list was not properly certified (Code 1930, secs. 3254, 3256).
4. ACKNOWLEDGMENT.
Lien of recorded deed of trust was not void, notwithstanding deficient acknowledgment in deed.
5. LIENS.
Acknowledgment is not essential to validity of lien.
6. TAXATION.
Statutes requiring lienors to be given notice of tax sales should be liberally and not narrowly construed (Code 1930, secs. 3257-3262).
7. TAXATION.
Purchasers at tax sales are not purchasers without notice of tax records.
8. TAXATION.
Defective acknowledgment of deed of trust did not relieve chancery clerk of statutory duty to give mortgagee notice of tax sale (Code 1930, secs. 3261, 3262).
9. TAXATION.
Tax sale held void as to mortgagee whose deed of trust was recorded, for failure of chancery clerk to give mortgagee statutory notice of tax sale, notwithstanding defective acknowledgment of deed of trust (Code 1930, secs. 3261, 3262).
APPEAL from chancery court of Newton county. HON. A.B. AMIS, SR., Chancellor.
J.O. Walton, S.T. Roebuck and A.B. Amis, Jr., all of Newton, for appellant.
The clerk under the statute is required to give notice to lienors whose liens appear of record in his office, of the ripening of a tax title, so as to pass such tax title clear of such lien.
Section 3259, Code of 1930.
Notaries public have by the law merchant no inherent power to take the acknowledgment of instruments of conveyance between individuals, for the purpose of registration. The power to take an acknowledgment is one of the principal powers of a notary under modern statutes, however, and of course in exercising this power he is acting under a special commission and must strictly follow the statutory requirements.
Section 2299, Hemingway's Code of 1917; 20 R.C.L. 332, par. 13.
The weight of modern authority and certainly the better reasoning pronounce the duties performed in taking an acknowledgment to be ministerial rather than judicial.
1 R.C.L. 252-255.
Our statute does not in any wise limit the jurisdiction of a notary public to the county of his appointment, and not having done so the notary public may act anywhere in the state. Then again the taking and certifying of an acknowledgment being merely a ministerial act, it may be performed at any time and place, and if in statutory form it is proper.
In the case at bar, admittedly Bailey acknowledged before a notary public, he signed and delivered the deed of trust in question, and such notary public in statutory form certified to such fact. The deed of trust was placed of record and there is no showing here made that the beneficiary named therein had any knowledge of the circumstances under which such acknowledgment was taken.
Certainly it cannot be insisted but that the law in Mississippi is that a person having actual notice of a deed of trust is bound thereby. The purpose and only purpose of our recording statute is to give notice, and by virtue of the statute, whenever an instrument is properly recorded it constitutes constructive notice from and after the time of its having been filed for record of the contents thereof.
Section 2135, Code of 1930.
An examination of the record will disclose that S.A. May, as chancery clerk, received for record and recorded the deed of trust in question, and that he attested the marginal renewal thereof, and that he was still the chancery clerk when the tax title involved in this cause purported to have ripened. In other words S.A. May, as chancery clerk, not only had seen the deed of trust of record, whether properly of record or not, but placed same of record himself. He therefore had actual notice of such deed of trust.
Section 3259, Code of 1930.
If the clerk knows the owner and his address, he is required by the language of the statute to give the notice.
State v. Wray, 117 Miss. 566, 78 So. 360.
In the present case the clerk did not issue notice either to Mrs. Shell or to her executor, or to any of her heirs.
We do not contend that R.C. Kent is a subsequent purchaser for value, with notice, but we do contend that under the statute any title acquired by him at the tax sale, is dependent upon a strict compliance with the statute and that sections 3259, 3260, 3261 and 3262, Mississippi Code of 1930, not having been complied with, that then and in that event the tax title is void as to such lienors.
It makes no difference whether the deed of trust was properly of record or not, S.A. May, chancery clerk, recorded same and therefore had actual notice thereof and his failure to give notice as required by statute avoids the tax title as to appellants.
Our construction of section 3256, Code of 1930, leads us to but one conclusion. The Legislature by the enactment of section 3256 meant, and the statute so says, that a certified list shall be made up by the tax collector, and that such list shall pass title and that same shall be transmitted to the clerk for recording, but that a failure to transmit or a failure to record such list or a defective list shall not affect or render the title void. In other words, the list must be made up and certified to pass title and that the making and certifying thereto is the thing which passes title. The statute does not say that the deed passes title, but does say that the list passes title.
Jeff Kent, of Forrest, and Green, Green Jackson, for appellees.
It is the position of the defendants, Jeff Kent and J.S. Luke, purchasers by conveyance from R.C. Kent, purchaser at the tax sale, that the instrument was not acknowledged as required by law, and that as to the tax sales and purchasers at tax sales said deed of trust was void, and being void, was not subject to be recorded, was not properly recorded, and that there was, therefore, no requirement of the chancery clerk to notify the mortgagee.
Sections 2135, 2146, 2147, 2858, 2863, Code of 1930.
Notaries public are usually appointed to act within a certain county, which is the limit of their jurisdiction and they are not authorized to act elsewhere.
20 R.C.L., pp. 331, 332; Fairbanks, Morse Co. v. Getchell, 110 P. 331; Cent. Dig., secs. 12, 13; Dec. Dig., sec. 4; Bostick v. Haynie, 36 S.W. 856; Garth v. Fort, 15 Lea, 683; Hill v. Bacon, 43 Ill. 477; Byrd v. Cochran, 58 N.W. 127; 1 R.C.L. 283.
Inasmuch as statutory authorization is essential to the taking of acknowledgments, it is true no doubt that an acknowledgment taken by a person not so authorized is null and void and ineffectual for any purpose.
1 R.C.L., pp. 273, 276; Hodges v. Mills, 138 Miss. 347, 104 So. 165; Adams v. Kyzer, 61 Miss. 407; Boutwell v. Grayson, 118 Miss. 89, 79 So. 61.
In Everett v. Williamson, 163 Miss. 848, 143 So. 690, the statutes here involved were held constitutional, and it was further held that the failure to give the notice required by law to the lienors, whose lien appeared of record, rendered the tax sale void as to such lienors.
Sections 3259, 3260, Code of 1930.
The agreed statement of facts shows that the acknowledgment was taken outside of the jurisdiction of the notary public and under the above authorities the act of the notary public was void and the instrument as to innocent purchasers was likewise void and not subject to record, and did not give constructive notice.
Boutwell v. Grayson, 118 Miss. 89, 79 So. 61; Adams v. Kyzer, 61 Miss. 407.
If, therefore, the deed of trust was not properly acknowledged so as to permit the same to be recorded, it was absolutely null and void; there was no valid acknowledgment to permit the recordation and there was no requirement that the chancery clerk or any other person dealing with said land should take any notice of the instrument that appeared of record.
Loughbridge Bogan v. Bowland, 52 Miss. 546; Holden v. Brimage, 72 Miss. 228, 18 So. 383; Ligon v. Barton, 88 Miss. 135, 40 So. 555; Tinnin v. Brown, 98 Miss. 378, 53 So. 780.
We assert, as was held by the chancellor in the lower court, that there is no showing of illegality or invalidity of the tax sale under the agreed statement of facts.
We call attention particularly to the provision of section 3256, Code of 1930, as follows: "The said lists shall vest in the state or the individual purchasers thereof a perfect title to the land sold for taxes, but without the right of possession and subject to the right of redemption; but a failure to transmit or record a list, or a defective list shall not affect or render the title void." And the following provision: "The lists hereinabove provided shall, when filed with the clerk, be notice to all persons in the same manner as are deeds when filed for record."
A simple reading of the statute and particularly of the emphasized portion thereof, as shown by the above, demonstrates that the point urged as to the invalidity of the tax sale is without any merit.
The Bank of Union, through S.T. Roebuck, receiver, filed suit in the chancery court of Newton county to set aside a tax sale, so far as the interest of the bank was concerned, of certain lands belonging to J.F. Bailey and embraced in a deed of trust in favor of the Bank of Union in which C.E. Johnson was the trustee, executed February 6, 1926, and acknowledged the same day. The acknowledgment shows on its face that it was taken in Newton county before W.R. Rivers, notary public, but the agreed statement of facts shows that the deed of trust was acknowledged in the Great Southern Hotel in Meridian, Lauderdale county, and recorded in Newton county, Miss. The notes securing the deed of trust were extended, and the date of their maturity was marked on the margin of the record and attested by the chancery clerk.
In 1929, said J.F. Bailey, the owner of the land, failed to pay the taxes thereon, and the land was sold on August 4, 1930, under a notice postponing the tax sale for that year, and fixing a new date therefor. The land was not redeemed from said tax sale within the two-year period provided by law by J.F. Bailey, or the Bank of Union, and the chancery clerk failed to serve notice to the lienors as required by sections 3261, 3262, Code 1930. At the tax sale, R.C. Kent became the purchaser, and on the expiration of two years, the land not being redeemed, the deeds made by the tax collector were delivered to R.C. Kent, who thereafter conveyed the land to Jeff Kent, who, in turn, conveyed it, by warranty deed, to J.S. Luke. The tax collector, in making the list of lands sold for taxes on August 4th, did not sign such list and certify to same as required by the statute.
The bill of complaint filed by the receiver of the bank prayed for an accounting showing the amount Bailey owed the bank; that the deed of trust be foreclosed, and that the claims of J.S. Luke, R.C. Kent and Jeff Kent be canceled so far as the rights of the bank were concerned, and for general relief. The complainants offered to do equity and alleged a readiness to perform all acts necessary under the facts stated in the bill of complaint.
On the hearing, the chancellor decreed that the clerk's failure to certify to the list, under section 3256, Code 1930, did not invalidate the sale, and that title passed thereby to the purchaser. He also held that the acknowledgment, having been taken in Lauderdale county, outside the jurisdiction of the notary public, Rivers, was void, and that the tax sale ripened in all parties interested in the lands, and dismissed the bill as to a portion of the lands, holding that the tax sale was void as to certain lands, because insufficiently described in the tax proceedings, and directed a foreclosure as to said lands insufficiently described in the tax proceedings. We think the chancellor was correct in holding that the acknowledgment taken before a notary public not acting within the county of his appointment was void as to bona fide purchasers. We are also of the opinion that the chancellor was correct in holding that the failure of the tax collector to sign and certify the tax list did not invalidate the tax sale. Section 3256, Code 1930, in part, reads as follows: "But a failure to transmit or record a list, or a defective list shall not affect or render the title void." Another part of the section provides that a list made in accordance therewith shall vest in the individual purchasers thereof a perfect title to the land sold for taxes, but without the right of possession, and subject to redemption, until title has ripened. Section 3254 provides that the tax collector shall deliver to the purchasers receipts showing to whom assessed, who the purchaser was, the amount paid, and the date of sale, such receipt to be evidence of the purchase of said land, and the state auditor to prescribe the form of such receipt.
Taking these provisions together, we are of the opinion that the list filed, although not properly certified to, with the receipt to the purchaser, were sufficient evidence of the sale to vest title in the purchaser, subject to the right of redemption.
Section 3257, Code 1930, requires that the chancery clerk shall issue notice to owners of land within ninety days, and not less than sixty days, prior to the date of the expiration of the time of redemption, that such land was sold for taxes, and that such sale would become absolute unless redeemed within the statutory period. Section 3258, Code 1930, provides that if the clerk fails to perform the duties therein prescribed, it will not render the sale void, but that he shall be liable to the party injured in the penal sum of twenty-five dollars, besides the actual damages sustained. Section 3259, Code 1930, provides for the form of the notice to lienors, and section 3260 provides that the notice shall be mailed to the post office address of the lienors, if known, otherwise to the county site of said county. Section 3261, Code 1930, provides that the clerk shall enter upon the tax sale book a notation to the effect that the clerk has made and completed an examination for liens, giving the name and addresses, if known, of said lienors, the book and page where the liens are recorded, and the date of mailing, by registered mail notice to the lienors. If the clerk finds no liens of record, he shall certify on said tax sale book, signing his name thereto, and it is provided by section 3262 that the clerk shall be allowed a fee of two dollars and fifty cents for each lien found, said fees to be taxed against the owner of the land, if redeemed, and if not, then taxed as a part of the cost against the purchaser, and a failure to give the required notice to the lienors shall render the tax title void as to them only, and the clerk shall be liable, for such failure, to the purchaser at the tax sale in the penal sum of twenty-five dollars, in addition to the actual damage sustained.
It will be noted, from the statement of the case, that the deed of trust was regular in form, and was actually recorded by the chancery clerk. The law requires the chancery clerk to make an index, both direct and reverse, of all deeds of trust, with the book and page where recorded, and the date when filed for record. The deed of trust in the case at bar being recorded in the office of the chancery clerk, and he being required to examine the record prior to the sale for taxes and to give notice to parties of any liens filed, the lien was not void. The deed of trust showed, on its face, that the Bank of Union was the lienor, and the lien was valid, although the acknowledgment to the deed of trust was not sufficient to give notice to bona fide purchasers. An acknowledgment is not essential to the validity of a lien. Woods v. Garnett, 72 Miss. 78, 16 So. 390, in which it was held that "one who purchases land after having seen on the records a prior instrument purporting to convey the same land, but not acknowledged or proved, . . . is not a bona fide purchaser without notice."
We think the chancellor placed too strict a construction upon the recording acts in the case at bar. The clerk was under duty to examine the records of his office to see if there had been any liens or sales, and to give notice thereof to all lienors, but he is not to pass his judgment upon the validity of such liens, if any. It appears here that the chancery clerk who was in office when the lien was recorded was also in office when required to give the notice as to redemption. There does not appear to have been any notation that he made this examination. It is the purpose of the statute that lienors are to be given notice of any tax sales, and we think the statute is not to be narrowly construed. It is to serve a good purpose, and should receive a liberal construction. State v. Wray, 117 Miss. 566, 78 So. 360. It is true the statute involved in the case of State v. Wray, supra, was not the same statute as in the case at bar, but it shows that statutes are not to receive a narrow construction.
The chancellor held that purchasers at tax sales are not purchasers for value without notice, and he correctly so held, because an examination of the tax records by purchasers would show the time the tax titles would mature, and they would be charged with notice of this record.
We think the court was in error in holding that the clerk was under no duty to give notice, because of the defective acknowledgment. We do not now pass upon the effect of what such failure would be if the record showed, on its face, that the acknowledgment was void, but we think it a safe course to hold the clerk to the performance of his duty to give notice of what appeared on his record. Had the clerk failed to record the instrument when presented to him because of the defective acknowledgment, that might have protected him, but having recorded the instrument, and, presumably, done everything proper in the way of indexing, etc., he must be held to have known of liens existing, and in the absence of any such showing, to have made a notation that he had examined the records and did not find such liens. The judgment of the court below, therefore, must be reversed, and the tax sale be held void as to the Bank of Union and the receiver thereof, though valid as to Bailey.
The court should ascertain the amount due under the deed of trust, and direct its foreclosure by the trustee named therein, or a substituted trustee, charging the bank with the amount of taxes and damages under the statute, and giving the purchasers at the tax sale the option or privilege to pay off the indebtedness to the bank, should they so elect.
Reversed and remanded.