Greene v. Williams , 58 Miss. 752 ( 1881 )

Campbell, J.,

delivered the opinion of the court.

We do not agree with the chancellor in his view that sect. 10 of “An act in relation to public revenue, and for other purposes,” approved February 1, 1877 (Acts, p. 2), had the effect to throw upon the holder of a conveyance of land sold for taxes by the tax-collector the burden of averring in pleading, and maintaining by evidence, the concurrence of all those things which are conditions precedent to the proper exercise of the power to sell. That section declares that such conveyance shall vest a- perfect title, which shall not be invalidated or defended against except by proof of certain things specilied. This is, in effect, to say the conveyance shall vest a perfect title, subject to be assailed by proof; in other words, the conveyance shall he prima facie evidence of a perfect title. It is true that, by virtue of the Constitution, the conveyance might be assailed by proof of other things than are specified in said section, but that does not take away the prima facie character of the conveyance. The Constitution adds to the things specified by sect. 10 of the act under review, proof of which will overthrow such conveyance, whatever may be a constitutional prerequisite to a valid sale for taxes; and it results from the act and the Constitution that such conveyance may be successful^ assailed by proof of what is made, by the Constitution or law, a ground for such assailment; but until proof of some such thing, the conveyance by the tax-collector is to be held to vest a perfect title in the purchaser.

To say that a conveyance shall stand until it is overthrown, is to invest it with the character of prima facie evidence. It is not necessary to say, in express terms, that a conveyance shall be prima facie evidence, in order to make it such. Griffin v. Dogan, 48 Miss. 11; Bell v. Gordon, 55 Miss. 46.

By virtue of sect. 12 of the above-cited act, the cancellation, by the clerk, of the conveyance made by the tax-collector to Shotwell, on payment of the money by appellant to effect such cancellation, operated “ to revest the title in the party to whom said lands belonged,” and no arrangement afterwards made between appellant and Shotwell could alter the legal effect of the entry to cancel the conveyance. The law permitted “the OAvner of such lands, or any person interested, or any person for him,” to “ repurchase the same.” Appellant did “repurchase” the laud. True, he did it for himself, as he thought and intended ; but Avlien the conveyance was “ cancelled,” the title revested in “ the party to whom said lands belonged.” Appellant applied to “repurchase” the land. It Avas not for the clerk to deny his right to do so, since he might do it for himself or the owner. The grantee in the conveyance had no right to object, as he got his money with interest. The object of the law was accomplished by the return to the purchaser at tax-sale of his money and interest, and to the owner, of his title to the land.

The appellant is not entitled to charge the land with the amount paid to “repurchase” it, or with the taxes he has since paid on it, or with any other sum, because there is no law giving the right to charge the land for such repayment.

It follows from these views that the demurrer was properly sustained.

It is assigned as error that no leave was given to amend the bill. It does not appear that leave to amend the bill was asked. A dismissal of the bill ordinarily follows a decree sustaining a demurrer to it. If leave to amend is desired, it must be applied for, and it is not erroneous to dismiss the bill if leave to amend it is not applied for.

Decree affirmed.

The counsel for the appellant suggested to the court that there was error in the foregoing opinion in two particulars : (1) in treating sect. 12 of the revenue act of 1877 as in operation at the time Greene made his attempted “repurchase ” of the land, when in fact it had been repealed by the revenue act of March 5, 1878 ; and (2) in treating Greene as a mere volunteer in paying out his money for the “ repurchase ” of the land and for taxes thereon, and therefore not entitled to have the same refunded to him, and yet holding that he was entitled to redeem under the statute. In response to these suggestions the court made the following announcement: —

Per Ouriam. — The twelfth section of the revenue act of 1877 was not repealed, but was reenacted and continued in force, bjrthe act on the same subject approved March 5, 1878. See Acts 1878, p. 50, sect. 49. Sect. 50 of that act seems to have misled counsel, who argue that because express provision is made by it for the redemption or purchase of lands before sold to the State for taxes, and no express provision was made for land before sold to individuals, there was a repeal of the provision by sect. 12 of the act of 1877 on that subject. Not so. The history of the legislation is this : The revenue act approved April 15, 1876, bjr sect. 48, made provision for the disposal of lands purchased by the State for taxes, but left it very doubtful whether lands sold to individuals were subject to redemption ; and, by sect. 49, it was declared that “ all lands heretofore sold to the State for taxes may be redeemed or purchased in the manner hereinbefore provided,” etc. By sect. 12 of the amendatory act of 1877, the concluding sentence of sect. 48 of the act of 1876 was so amended as to specifically provide for and regulate the “purchase” and “reconveyance” of land bought by individuals at sales for taxes. The act of 1878 embodies the act of 1876 as amended in 1877, and copies substantially, and almost verbally, sect. 12 of the act of 1877 ; and sect. 50 of the act of 1878 reenacts sect. 49 of the act of 1876, so as to apply the provision, for disposal by the State of all lands held by it for taxes under former sales. The propriety of the express provision for the disposition of lands held by the State, and the omission of such provision for the redemption of lands sold to individuals, other than was made by the reenactment of sect. 12 of the act of 1877, is manifest. The State held large quantities ■ of land thus acquired, and it was proper to make provision for its disposition. Therefore the act was made to apply to these lands. All that was necessary or proper'as to lands held by individuals was to reenact and continue without change the provision for the cancellation of conveyances to individuals as contained in the act of 1877, and that was done.

It is a mistake to suppose that we deny to appellant the right to reimbursement for his outlay of money on the ground that he was a mere ‘ ‘ volunteer ’ ’ in effecting the cancellation of the conveyance to Sliotwell. It is true that in his bill he avers that he was a mere intruder and “volunteer,” without right to “ repurchase ;” but our view is, that as he claimed the right to intervene and procure the cancellation of the tax-collector’s conveyance to Shotwell, and did it, it had its legal operation and effect, and, therefore, that there was nothing left for Shotwell to convey to appellant, and he got nothing by Shotwell’s conveyance. The ground on which we felt compelled to deny reimbursement to appellant is, that sect. 56 of the revenue act of 1876, by virtue of which a right to reimbursement out of the land existed, was omitted from the act of 1878, and was thereby repealed ; and when appellant procured the conveyance to Shotwell to be “ cancelled,” there was no statute giving him any right to reimbursement.

We decline to make any change in the judgment heretofore entered in this case.