LEE v. SMITH

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No. 34247.

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Smith, C.J., delivered the opinion of the court.

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LEE v. SMITH.

Hall Hall and Bernard Callender, all of Columbia, for appellant.

The appellant must admit that the tax sale in question is void. The appellant, however, anticipated that the sale would likely be held void, and for that reason she pleaded the protection of Chapter 196 of the Laws of 1934 in her bill of complaint. The sole and only question for decision in this case is, therefore, the constitutionality vel non of Chapter 196, Laws of 1934, as applied to this sale.

The appellee is complaining that the 1934 law deprived him of time in which he could redeem the land. The fallacy of this argument is apparent for two reasons: First, the statute did not in fact shorten the time in which he could have redeemed the land from the tax sale; and second, the appellee had no intention of redeeming the land for the reason that he took the position that the sale was void and that it was therefore not necessary to redeem. The statute in question has reference to actions to cancel tax titles affected with defects and irregularities, and not redemptions from valid tax sales. Appellee is blowing both hot and cold in the same breath, by first contending that the sale was void on account of an irregularity occurring in the manner of sale, rendering redemption unnecessary and improper, and then at the same time, bitterly complaining that the Legislature by the passage of Chapter 196 of the Laws of 1934 deprived him of five months and fourteen days' time in which to effect redemption from the void sale.

We earnestly submit that Chapter 196 does not affect in any way the appellee's right to redeem the land within three years from September 18, 1933, the date of sale, as provided by Chapter 383 of the Extraordinary Session of 1932, and that the only effect the statute had upon appellee's rights whatsoever was to require him to institute suit for cancellation of the state's title within two years from September 18, 1933, if he desired to contest the state's claim to the land and press his own, in default of which, he would be thereby precluded from thereafter contesting the state's title.

Russell Inv. Corp. v. Russell, 178 So. 815, 182 So. 102, 182 Miss. 385.

In the Russell case, supra, the tax sale was made on April 4, 1932, for 1931 taxes. Under the law then in force, the owner had three years, or until April 4, 1935, in which to effect redemption. Chapter 196, Laws 1934, went into effect on April 4, 1934, and placed upon the owner the necessity of filing suit for cancellation of the tax sale within two years, or not later than April 4, 1936. The land owner did not file his suit for cancellation of the tax sale until November 16, 1936, after title had ripened in the state and several months after the two-year limitation of Chapter 196 had expired. The court held, in its first opinion, 178 So. 815, that the land owner had waited too long to file his suit for cancellation, and regardless of the alleged defects and irregularities of the tax sale, Chapter 196 of the Laws of 1934 foreclosed his suit and divested him of all title. On suggestion of error it was argued that Chapter 196 was unconstitutional for several reasons shown by the opinion (182 So. 102, 182 Miss. 385). We earnestly feel that the holding of this court in its second opinion in the Russell case is a complete answer to the complaints made by appellee in this case, notwithstanding the fact that the sale involved in the Russell case was made in 1932, while the sale in the instant case was made in 1933.

Chapter 196, Laws of 1934, does not undertake to cure or validate defects, irregularities and illegalities in the assessment, levy and sale of land for taxes. It is purely a statute of limitation, and does not take away any vested rights but fixes a reasonable period of time in which they may be asserted. It leaves the former owner the right to sue and have the sale declared void because of such defects, irregularities and illegalities. Clause 1, Section 10, Article 1 of the Federal Constitution is not violated by a statute, as impairing an obligation of a contract, where the rights existing thereunder are neither taken away nor diminished, and where a reasonable time is provided in which they may be enforced after its enactment.

Russell Inv. Corp. v. Russell, 178 So. 815, 182 So. 102, 182 Miss. 385.

Under the principles followed in the Russell case, supra, and the case of Turner v. New York, 168 U.S. 90, 42 L.Ed. 392, 18 So. 38, therein relied on, we would not say that a shortening of the time for redemption, — even if such were the case, — would necessarily render the statute unconstitutional, so long as a reasonable time was left by the Legislature for redemption of the land.

We earnestly submit that Chapter 196, Laws of 1934, leaves appellee's right of redemption unaffected. It is one of the first principles, in the construction of statutes, to first look to the text of the statute. The language of Chapter 196 is absolutely plain and unambiguous, and it is not even necessary to look to the intention of the Legislature in passing the act, though it would be unthinkable to conclude that the Legislature intended, by enactment of the law, to deprive an owner of his right to redeem from tax sale, when the very text of the law negatives such an intention. Moreover, even if there were doubt as to whether the Legislature intended to shorten the period for redemption, when the statute is being construed under a constitutional attack, it must be construed prospectively and as saving existing rights.

61 C.J. 1422, Sec. 1689; Judah v. Brothers, 14 So. 455, 71 Miss. 414.

Parker Morse, of Poplarville, for appellee.

It was the contention of the appellee, and was passed upon by the lower court, that Chapter 196 of the Laws of 1934, whether considered constitutional, or unconstitutional, could not apply, and did not apply, to the tax sale in question in this case. In fact, it is not the contention of the appellee that this law is not constitutional as to all other sales, that is, the sales made prior to 1933, like the one passed upon in Russell Investment Corporation v. Russell, 182 Miss. 385, 178 So. 815, 182 So. 102; or as to sales made after 1933, but from the peculiar situation which existed, the law could not apply and cannot now be applied as raising a defense to the sale in question.

Chapter 383 of the Laws of the Extraordinary Session of the Legislature of the State of Mississippi of 1932, gave appellee three years from and after September 18, 1933, (the date of the sale in question), in which to redeem his land from the tax sale. This law, under the decisions of our court, became a part of the contract of sale, and was, under our decisions, and under the law generally, a vested right belonging to the appellee, running with his land; a vested right, in this, that he had the right on any day during this entire three-year period to redeem his lands, had the sale been a valid sale. The appellant admits that it was not necessary for him to redeem, when she admits that the sale was a void sale. Nevertheless, this law, fixing a three-year period in which to redeem, was a part of the contract of sale, was a vested right, one which could not be impaired, or divested by any act of the Legislature; passed at a date after the date of the sale.

Moody v. Hoskins, 64 Miss. 468, 1 So. 622.

The title to the land, if Sec. 3, Ch. 196, Laws of 1934 could be applied, would be vested absolutely in the state and every right and every title to every other person, except the state and its patentees would be extinguished and destroyed.

The rights of all parties to the contract of sale are fixed and governed by the statute under which the sale was made, and they cannot thereafter be substantially impaired under Clause 1, Section 10, Article 1 of the Federal Constitution.

Reid v. Fed. Land Bank of N.O., 166 Miss. 392, 148 So. 392; Price v. Harley, 142 Miss. 584, 107 So. 673; Everett v. Williamson, 163 Miss. 848, 143 So. 690.

The appellee was not required to redeem his land from such admittedly void sale for the reasons: (1) Because the sale was an admittedly void sale, one which required no redemption; (2) The law did not require the appellee to do a vain or useless thing.

McLain v. Meletio, 166 Miss. 1, 147 So. 878.

No matter how much the appellee had endeavored to redeem, or to free his land from the void tax sale, after April 4, 1936, although under Chapter 383 of the laws of the Extraordinary Session 1932 he would have the vested right to do so, the clerk of the chancery court, the officer to whom the law required him to go to redeem his land, being a ministerial officer, bound by the law as written and on the statute books, could not have permitted the appellee to redeem, as the clerk could not pass upon the constitutionality, or the unconstitutionality, of Chapter 196 of the Laws of 1934. This law extinguished every right that the appellee had and denied the chancery clerk the right to deal with, or treat with this title to any extent, and vested in the State of Mississippi title to said lands.

No one but the judiciary, the courts of the state, could pass upon the constitutionality of this law.

State v. Powell, 27 So. 927, 77 Miss. 542; Miller v. Hayes, 143 Miss. 471, 109 So. 16; McCullen v. Stone, 64 Miss. 368, 8 So. 236; 22 R.C.L. 457, Sec. 117.

So considering the effect of the act of the Legislature of the State of Mississippi, to-wit, Chapter 196 of the Laws of 1934, and for the sake of argument conceding that this tax sale was a valid tax sale, there can be no question but that this act of the Legislature deprived the owner of the land, to-wit, the appellee herein, of five months and fourteen days of his time within which to redeem his lands. This being done by the Legislature of the State is necessarily an act done by one of the contracting parties, without the consent or approval of the other contracting party, yet if we accept the argument of appellant, and, if we uphold the position the appellant takes in connection with this sale, we find ourselves holding that a void sale for taxes may be rendered valid by shortening the time in which the owner had to redeem same, or in other words, we would have an act of the Legislature, which our courts say amounts to confiscation, one which it has heretofore said could not apply, a void act of the Legislature, as to a void tax sale, breathing life into a void sale, and making a valid tax sale thereof. We do not think that the court can subscribe to this doctrine, or that it will do so.

Appellant can get no comfort from the case of Russell Investment Corporation v. Russell, 182 Miss. 385, 178 So. 815, 182 So. 102, so far as the question here involved goes, for the reason that this question was expressly pretermitted in the Russell case as may be found from the opinion in that case ( 182 Miss. 420).

1. CONSTITUTIONAL LAW.

A statute may be constitutional and in operation with respect to some persons and states of facts and unconstitutional as to others.

2. TAXATION.

The statute limiting the right of an owner to recover land sold to the state for delinquent taxes thereon prior to enactment of statute to two years from day of sale does not affect right of redemption as to land sold prior to enactment of statute (Laws 1934, chap. 196, sec. 1).

3. TAXATION.

An owner of land which is sold for taxes under a sale that is void may redeem the land from the sale, bring an action to cancel the sale, or await action by purchaser at sale or his vendees and then invoke invalidity of sale in bar of any title therefrom.

4. TAXATION.

The first section of statute limiting right of an owner to recover land sold to the state for delinquent taxes thereon prior to enactment of statute to two years from day of sale limits only the time in which the owner can plead any defect in sale referred to in statute against the state or its patentees (Laws 1934, chap. 196, sec. 1).

5. TAXATION.

When an owner of land sold for taxes redeems land from tax sale, a release of claim or title of the state or purchaser to such land executed by chancery clerk, through whom redemption must be made, renders tax sale without further efficacy, and owner's title and right to possession do not rest on defects in assessment or sale of land so that necessity for an action to cancel title of purchaser at tax sale no longer exists (Code 1930, sec. 3264; Laws 1932, Ex. Sess., chap. 383, sec. 11).

6. TAXATION.

The third section of the statute limiting right of owner to recover land sold to the state for delinquent taxes thereon prior to enactment of statute to two years from day of sale is more than a mere statute limiting time within which to bring an action to cancel title of the state to land sold to the state for taxes, since, on expiration of time limit in first section of statute, it extinguishes all the right in and to such land of any person (Laws 1934, chap. 196, secs. 1, 3).

7. TAXATION.

Where unoccupied land was sold on void tax sale to the state for taxes on September 18, 1933, and landowner at that time had a three-year redemption period, the third section of statute of 1934 limiting right to redeem to two years would be unconstitutional if applied so as to reduce owner's right to redeem to two years, and hence owner's right to redeem land from sale was unaffected by statute, and title, which statute vested in state and its patentees, was held subject to right of any person interested in the land to redeem it from sale, and, where land had not been redeemed, title of state and its patentees remained in full force (Code 1930, secs. 3249, 3264; Laws 1932, Ex. Sess., chap. 383, secs. 9, 11; Laws 1934, chap. 196, secs. 1, 3).

8. STATUTES.

Where unoccupied land was sold to the state on void tax sale for taxes on September 18, 1933, and landowner, when land was sold, had a three-year redemption period, unconstitutionality of third section of statute of 1934 limiting owner to a two-year redemption period, if statute was applied so as to limit owner's right of redemption to two-year period, did not render statute wholly inapplicable, but merely required that its operation be so restricted as to preserve right of redemption that existed when land was sold for taxes (Code 1930, secs. 3249, 3264; Laws 1932, Ex. Sess., chap. 383, secs. 9, 11; Laws 1934, chap. 196, secs. 1, 3).

9. APPEAL AND ERROR.

On appeal by purchaser of land, which had been acquired by purchaser's predecessor from the state after land had been sold to state for taxes, from decree dismissing purchaser's suit to confirm purchaser's title against original landowner's grantee, question of what the rights of original owner's grantee would have been had owner or one interested in land sought to redeem it from tax sale within three years allowed therefor and been refused permission to do so was not presented, where there was no allegation in the bill that owner of land or one interested therein had attempted to redeem and had been refused permission to do so (Code 1930, secs. 3249, 3264; Laws 1932, Ex. Sess., chap. 383, secs. 9, 11; Laws 1934, chap. 196, secs. 1, 3).

Smith, C.J., delivered the opinion of the court.

Chapter 196, Laws 1934, approved April 4, 1934, Sections 1 and 3 of which the reporter will set out, limits the right of the owner of land sold to the State for delinquent taxes thereon prior to the enactment of the statute, to two years from the day of the sale, and at the expiration of the two years extinguishes "all the right, title and interest, including the right of possession in and to such land, of any and all persons whatsoever, except the state of Mississippi and its patentees" and vests "in the state, and its patentees, a fee simple title to such lands."

"Section 1. Be it enacted by the Legislature of the State of Mississippi, That the owner, mortgagee or other person interested in any land which has been heretofore or may be hereafter sold or forfeited to the state for delinquent taxes may bring a suit or action to cancel the title of the state or its patentees, or to recover said land from the state, or its patentees, on account of any defect, irregularity or illegality in the assessment, levy or sale of such land for delinquent taxes, within two years after the date this act becomes effective as to lands heretofore sold or forfeited to the state for delinquent taxes, and within two years after the period of redemption shall have expired, as to lands hereafter sold or forfeited to the state for delinquent taxes, and not thereafter. Provided, however, the lmitations herein fixed shall not apply when the taxes on such land had been paid prior to the time it was sold for taxes, and provided, further, that the provisions of this act shall not apply to lands sold to the state prior to January 1, 1928."
"Sec. 3. The completon of the lmitation herein prescribed to bar any action shall defeat and extinguish all the right, title and interest, including the right of possession in and to such land, of any and all persons whatsoever, except the state of Mississippi and its patentees, and it shall vest in the state, and its patentees, a fee simple title to such lands."

In Russell Inv. Corp. v. Russell, 182 Miss. 385, 178 So. 815, 182 So. 102, this Court pursuant to a well-recognized rule of constitutional law that a statute "may be constitutional and in operation with respect to some persons and states of facts and unconstitutional as to others" (11 Am. Jur. Const. Law, Secs. 163, 164), held that the statute was constitutionally operative and enforceable as to an owner of land who was not in possession thereof, but following Dingey v. Paxton, 60 Miss. 1038, was constitutionally inoperative and unenforceable against an owner of the land who was in possession thereof. This case presents a state of facts which the Court in the Russell case said was not then before it and on which it expressed no opinion, and to which the appellee says that the statute is also constitutionally inoperative and unenforceable.

The bill of complaint, filed by the appellant on March 27, 1940, alleges, in substance, that the taxes not having been paid on the land described in the bill for the year 1932, it was offered for sale therefor by the sheriff and tax collector on September 18, 1933, and there being no bid therefor was struck off by him to the State. A certified list of land struck off to the State at the sale, including the land here in question, was filed in due time by the tax collector with the chancery clerk of the county. Three years thereafter the land not having been redeemed from the tax sale, it was certified by the chancery clerk to the State Land Commissioner, by whom and the Governor of the State it was sold to Oscar Lee from whom the appellant purchased it. The land was not occupied by anyone when the tax sale was made, and is not now. The appellee claims the land under a conveyance to him thereof by the corporation which owned it at the time of its sale to the State for taxes.

The prayer of the bill is for the confirmation of the appellant's title to the land, and for the cancellation of the appellee's claim thereto. A demurrer to the bill was sustained, and the bill was dismissed.

It appears from an exhibit to the bill of complaint that the sheriff and tax collector failed to comply with the provisions of Section 3249, Code 1930, Sec. 9, Chapter 383, Laws Extr. Sess. of 1932, as to the method to be pursued when selling land for taxes thereon. The appellant admits that the sale was void, but says that since the land was sold for taxes more than two years before her bill of complaint was filed, the defect in the sale thereof has been cured by Chapter 196, Laws of 1934.

The appellee says that the statute cannot have such effect here for the reason that under Section 11, Chapter 383, Laws of Extr. Sess. 1932, the owner of the land at the time it was sold for taxes had three years from its sale — from September 18, 1933 to September 18, 1936 — in which to redeem the land, and to apply Chapter 196, Laws 1934 here would result in limiting his right to redeem the land to two years from the sale thereof, thereby cutting off five months and fourteen days from the three years in which the owner of the land had at the time it was sold to redeem it under Chapter 383, Laws Extr. Sess. 1932, and that so to do is beyond the constitutional power of the Legislature.

Section 1 of Chapter 196, Laws of 1934, approved April 4, 1934, in no way affects the right of redemption as to land sold prior to its enactment, as was the land here. It simply limits the time within which an action can be brought by an owner of land sold to the state for taxes "to cancel the title of the state, or its patentees, or to recover said land from the state, or its patentees on account of any defect, irregularity or illegality in the assessment, levy or sale of such land for delinquent taxes" to two years after the statute became effective on April 4, 1934.

An owner of land sold for taxes, which sale is void, may, if he so desires, redeem it from the sale, bring an action to cancel the sale, or await action by the purchaser at the sale or his vendees and then invoke the invalidity of the sale in bar of any title therefrom. Section one of the statute limits only the time in which the owner of land sold to the state for taxes can plead any defect in the sale referred to in the statute against the state or its patentees. When the owner of land sold for taxes redeems it therefrom, the chancery clerk, through whom the redemption must be made, is required to execute to him "a release of all claim or title of the state or purchaser to such land" (Section 3264, Code 1930, Sec. 11, Chap. 383, Laws Extr. Sess. of 1932), by virtue of which the tax sale from which the land was redeemed is without further efficacy and the owner's title and right to possession do not rest on defects in the assessment or sale of the land so that the necessity for an action to cancel the title of the purchaser at the sale no longer exists.

Section 3 of Chapter 196, Laws 1934, however, is more than a mere statute limiting the time within which to bring an action to cancel the title of the state to land sold to it for taxes (cf. Russell Investment Corp. v. Russell, supra); for, on the expiration of the time limit in Section 1 of the chapter, it "extinguish[es] all the right . . . in and to such land, of any and all persons whatsoever," etc. One right the owner of the land here had at the time it was sold for taxes thereon, was to redeem it at any time within three years thereafter, which right the statute would extinguish, if valid for that purpose, at the expiration of two years from the day of the sale of the land to the state, thereby cutting off five months and fourteen days from the time in which the owner thereof could redeem it; but so to do is beyond the constitutional power of the Legislature (Moody v. Hoskins, 64 Miss. 468, 1 So. 622; Price v. Harley, 142 Miss. 584, 107 So. 673; Everett v. Williamson, 163 Miss. 848, 143 So. 690; Reid v. Fed. Land Bank, 166 Miss. 392, 148 So. 392); consequently, Section 3 of the statute cannot be given that effect, and is inoperative here to that extent, so that the right of the owner of this land to redeem it from the tax sale was unaffected thereby, and the title thereto, which the statute vested in the state and its patentees, was held subject to the right of any person interested in the land to redeem it from the tax sale. Had it been redeemed therefrom, the title of the state and its patentees thereto would have been extinguished, but not having been redeemed that title remains, insofar as this record discloses, in full force and effect.

The constitutional defect in Section 3 of Chapter 196, Laws 1934, as applied to the facts of this case, does not render it wholly void, or to express it more aptly, wholly inapplicable here; but simply requires that its operation be so restricted as to preserve the right of redemption that existed when the land was sold for taxes.

The appellee says that it would have been useless for the owner of the land to have attempted to redeem it, for the chancery clerk would have obeyed Chapter 196, Laws 1934, and refused to permit its redemption. This may or may not be true, but the question of what the rights of the appellee would be, had the owner of the land or one interested therein sought to redeem it within the three years allowed therefor and been refused permission so to do, is not presented by this record, there being no allegation to that effect in the bill of complaint.

The decree of the court below will be reversed, the demurrer will be overruled, and the case remanded, and the appellee given thirty days after the filing of the mandate in the court below to answer the bill of complaint.

So ordered.

LEE v. SMITH.

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