Opinion
No. 34248.
November 11, 1940. Suggestion of Error Overruled, December 23, 1940.
APPEAL AND ERROR.
In suit by state tax collector against county chancery clerk and surety on clerk's faithful performance bond for permitting lands sold at tax sales to be redeemed without requiring redemptionists to pay interest required by statute, where chancellor overruled general demurrers to bill of complaint and granted an appeal to settle all principles, and a consideration of the bill and general demurrers convinced Supreme Court that it could not settle all controlling principles of the case on the appeal, appeal was improvidently granted and would be dismissed.
APPEAL from the chancery court of Harrison county, HON. D.M. RUSSELL, Chancellor.
Wallace Greaves, of Gulfport, and Jacobson, Snow Covington, of Meridian, for appellants.
No recovery can be awarded on the facts stated in the bill until the court has adjudged the releases complained of are legally sufficient to divest the state of its titles to the lands involved, and the law confers no authority upon the State Tax Collector to maintain a suit for that purpose.
Gully, State Tax Collector, v. Stewart, 178 Miss. 758, 174 So. 559; State, ex rel, Rice, Atty. Gen., v. Stewart, 184 So. 44, 185 So. 247, 184 Miss. 202; Sec. 6986, Code of 1930.
The sole power and authority to commence and prosecute suits concerning the state's titles to these lands is conferred upon the state land commissioner by statute.
State ex rel. Brown, Land Com'r., v. Poplarville Sawmill Co., 119 Miss. 432, 81 So. 124; Patterson v. State, 177 Miss. 227, 170 So. 645; State ex rel. Rice, Atty.-Gen., v. Stewart, 184 Miss. 202, 184 So. 44, 185 So. 247; Reliance Inv. Co. v. Johnson (Miss.), 193 So. 630, 194 So. 749; Secs. 6019, 6020, 6021, Code of 1930.
All persons having, claiming, or asserting any right, title, or interest in and to the lands involved, so far as known to the complainant or as can be ascertained by him by diligent inquiry, are essential parties to the suit insofar as it seeks the adjudication of the validity of the releases complained of, so as to render them legally sufficient to divest the state of its titles to the lands alleged to be affected by them. The State Land Commissioner is, also, an essential party to the suit.
Trager v. Jenkins, 75 Miss. 676, 23 So. 424; Smith v. W. Denny Co., 90 Miss. 434, 43 So. 479; Paepcke-Leicht Lbr. Co. v. Savage, 137 Miss. 11, 101 So. 709; Carrier Lbr. Mfg. Co. v. Quitman County, 156 Miss. 396, 124 So. 437, 125 So. 416; Lamar Life Ins. Co. v. Billups, 175 Miss. 771, 169 So. 32; Fitts v. Huff, 63 Miss. 594.
The action of the court in the dismissal of the appeal is supported by a written opinion in which the reasons for the judgment of dismissal are stated. The opinion makes it obvious that the court has treated the bill of complaint as one stating a case imperfectly, but has treated all of the obvious imperfections as being curable by amendments, as were the bills considered in the cases of Carothers v. Bank of Baldwyn, 158 Miss. 602, 131 So. 111; Stirling v. Whitney National Bank, 170 Miss. 674, 150 So. 654; Standard Lbr. Mfg. Co. v. Roddis Lbr. Veneer Co., 168 Miss. 202, 151 So. 152; and other cases to the same effect.
A careful examination of the bill of complaint discloses that, if the complainant has any cause of action at all against the defendants, it must rest upon a valid divestiture of the state's titles to the lands involved in the suit, which inevitably involve substantive legal questions that cannot be judicially determined in a suit by the state tax collector against the chancery clerk, who is alleged to have issued the alleged redemption certificates without collecting all of the statutory charges in favor of the state, the county, and the various taxing districts within the county against the lands covered by such certificates. Certainly, this question presents the controlling principle of law involved in the cause, and all of the other legal questions presented by the facts stated in the bill are subordinate and can have no controlling effect.
It is suggested in the opinion by the court that the appellants should have interposed special demurrers to the bill, for the purpose of invoking the aid of the court in the correction of formal defects in the bill. In response to this suggestion by the court, we say, if the appellants had interposed special demurrers to the bill, that would have constituted a procedural step, or steps, from which no interlocutory appeal lies. The only provisions for interlocutory appeals are found in Section 14, Code of 1930, and this court has held in numerous decisions that decrees and rulings in procedural matters are not within the provisions of this statute.
Love v. Love, 158 Miss. 785, 131 So. 280; Marquette Cement Mfg. Co. v. New Amsterdam Casualty Co., 174 Miss. 843, 165 So. 615; Dunn v. Dent, 176 Miss. 786, 170 So. 299; Breland v. Lemastus, 183 Miss. 150, 183 So. 500.
May Byrd, of Jackson, for appellee.
Appellants say that the State Tax Collector has no right to maintain this suit, although they did not raise that by the demurrer, and they cite the case of Gully, State Tax Collector, v. Stewart, 178 Miss. 758, and they take the position that the sole power and authority to commence and prosecute suits concerning the state's title to land is conferred upon the State Land Commission by statute, and therefore the State Tax Collector cannot proceed in this case.
The appellants have, we submit, completely misconstrued the purpose of the instant suit. The purpose of the instant suit is not to affect and cannot and does not affect title to the lands in question. As far as we know no one has raised the question of the validity of the redemptions, and the redemptionists have gone their way assuming, and properly so we think, that they have done what the law required of them and that their title insofar as the tax sale is concerned is now clear. The State Tax Collector then comes to court and says nothing about the title of these lands, but bases his suit upon the fact that by virtue of the breach of an official duty by McManus the State of Mississippi and the subdivisions of Harrison County and Harrison County have lost more than $20,000 by reason of this breach of duty, wherefore the cause of action will lie. The State Tax Collector is not undertaking in this suit to determine the title of the state to any land, but is undertaking to collect money which the chancery clerk was under a duty to collect, but which he failed and refused to collect and which by his action the state has lost. McManus in refusing to collect the same will be treated as having collected the same and will be liable on his bond for the amount which he refused to collect and which the state lost by reason of such refusal when McManus issued the redemption certificates to the parties redeeming the land.
Argued orally by R.A. Wallace, for appellants.
J.B. Gully, former State Tax Collector, filed a bill in the Chancery Court of Harrison county against Eustis McManus, Chancery Clerk of the county, and the United States Fidelity Guaranty Company, alleging that on the 1st day of January, 1932, Eustis McManus qualified as such Chancery Clerk, giving the United States Fidelity Guaranty Company as the surety on his bond, in the penalty of $20,000 for the faithful performance of his duties as such clerk; that McManus qualified and served in that capacity for the succeeding four years; and that on the 1st of January, 1936, he again qualified as Chancery Clerk, with the same surety on his bond, again in the sum of $20,000; copies of these bonds being attached as exhibits to the bill.
The bill charged that Eustis McManus, as Chancery Clerk, was in duty bound to attend to the redemption of lands sold for taxes due the state of Mississippi, the county of Harrison, and its various subdivisions (not naming such subdivisions or taxing districts); that it was his duty to keep books and records of the office pertaining to tax sales, and the redemption of lands sold thereunder, and the collection from persons or corporations purchasing at such sales of sums of money paid therefor, together with damages, costs and interest. It is charged that the law specifically requires Chancery Clerks to collect from all redemptionists interest on the past-due and accrued taxes on the real property so sold, before canceling the tax sale, and before the redemption becomes absolute and legal, that notwithstanding the provision of the statute imposing this duty upon the clerk, Eustis McManus, for a long time neglected to collect any interest on the accrued taxes due the state of Mississippi, the county of Harrison, and the various taxing districts thereof (again not naming them), permitting large quantities of such lands to be redeemed without requiring the redemptionists to pay interest at the rate of one per cent per month.
The bill then alleged that upon an investigation being made of the record of tax sales and redemptions of lands in Harrison county, Mississippi, in the office of the Chancery Clerk, for the period from January 1, 1932, to the first Monday in January, 1936, and from that date to, and including, the first Monday in January, 1937, the complainant discovered that in violation of the requirements of the statute, and his duty thereunder, the defendant, Eustis McManus, had permitted the redemption of lands without collecting from the redemptionists the interest of one per cent on accrued taxes of the state, county, its subdivisions, excluding municipal taxes. It is alleged that from the first Monday of January, 1932, to and including the first Monday of January, 1936, the defendant permitted the redemption of lands under a number of tax sales by persons whose lands had been sold to the state, in each instance failing to collect the interest of one per cent per month on the accrued taxes on such lands. Attached to the bill as an exhibit is a statement showing the number in the release book, the person to whom such release or redemption certificate was issued, the year in which such sale was made, the amount of accrued taxes on the lands, the rate of interest on accrued taxes, and the amount of such interest, — the total uncollected interest amounting to $11,538.62.
It was alleged that from the first Monday in January, 1936, to and including February 28, 1937, the same conditions prevailed, the amount of interest due on taxes accrued on redeemed lands amounting to $9,080.17; that demand had been made upon the defendant for the said amounts, a total of $20,618.79, upon the making of which demand the State Tax Collector was entitled to a commission of twenty per cent on the total amount, $4,123.76. The principal and commission make a total of $24,742.55, together with interest thereon at six per cent per annum from the date of each item to the date of payment. The complainant prayed for a process to issue commanding the defendant to appear at rules of the Chancery Court of Harrison county, to answer the bill, but not under oath; and for a decree in favor of the complainant for the use and benefit of the state of Mississippi, Harrison county, and the various taxing subdivisions thereof (said subdivisions not being named); and on the surety on the bond of McManus for the said sum, with interest from the date of judgment; and for such other, further and general relief as to the court might seem meet and proper.
Each of the defendants interposed a general demurrer, each containing as ground therefor the following: "1. Because the averments of fact contained in the bill of complaint wholly fail to state a right or cause of action against this defendant. 2. Because there is no equity on the face of the bill." The Chancellor overruled each of the demurrers, and granted an appeal to settle all the principles of the case.
There were no special demurrers interposed to the bill, and consequently the bill is here only on bill, and general demurrer thereto, as stated. A consideration of the bill and the general demurrers convinces us that we cannot settle all the controlling principles of the case on this appeal, and consequently the appeal was improvidently granted. It is apparent that by amendments and by other pleadings other issues may arise in the case, and we cannot settle the law controlling the final disposition thereof on this appeal. Therefore, the case will be dismissed.
Appeal dismissed.