Leavenworth v. Claughton , 197 Miss. 606 ( 1944 )

CONCURRING OPINION. I concur in the overruling of this Suggestion of Error, but all that was said in our former opinion herein relative to the period of limitation prescribed by Chap. 196, Laws 1934, beginning when the possession of the owner of land sold to the state for taxes is invaded by the state or its patentee, should be withdrawn. In addition, Dingey v. Paxton, 60 Miss. 1038, should be reaffirmed without any modification thereof, and the uncertainty which has been injected by Russell Investment Company v. Russell, 182 Miss. 385,178 So. 815, 182 So. 102, onto the question of the validity vel non of Chap. 196, Laws 1934, as applied to sales of land to the state for taxes, made prior to the statute's enactment, should be here definitely and effectively cleared up; which, with deference, the opinion just rendered does not do.

Whether Chap. 196, Laws 1934, be viewed as a statute of limitation, or as a curative act, the result as to its constitutional validity vel non, when applied to sales of land to the state for taxes, made prior to its enactment, will be the same. That statute, if valid, would convert a void sale of land to the state for taxes, made prior to its enactment; into a valid sale, and transfer the title to the land from its owner to the state or its patentee by the mere flight of time — two years from the date the statute was enacted — unless the owner in the meantime has brought a suit or action to cancel the title of the state or its patentee. Such a statute was held to violate the Due Process Clause of our Bill of Rights in Dingey v. Paxton, supra, although the possession of the land by its owner was not actual, but only constructive. This holding was followed and approved in Carlisle v. Goode, 71 Miss. 453, 15 So. 119. The question of the validity of such a statute, as applied to the sales of land for taxes, made before its enactment, was next presented to this Court by Russell Investment Co. v. Russell, supra. In that case, the Court understood Dingey v. Paxton, supra, to hold that such a statute was valid except as against a landowner who was in the actual possession of the land sold. This appears not only from the opinion then rendered, but from the disposition made by the Court of the case it was then considering. In that case, a landowner had filed a bill in equity more than two years after the enactment of Chap. 196, Laws 1934, to cancel a sale of his land to the state for taxes, made prior to the enactment of the statute. His bill of complaint did not allege that he was in possession of the land. A demurrer to the bill was overruled by the trial court, which ruling this Court reversed, holding that the demurrer should have been sustained, but that the complainant had the right to amend his bill, if he so desired, by alleging possession of the land, meaning actual possession, for it clearly appeared from the bill of complaint that the complainant was in the constructive possession thereof; and the case was remanded to the trial court, so that the complainant could if he so desired, amend his bill of complaint by alleging that he was in possession of the land. What the Court should have there done, under Dingey v. Paxton, was to affirm the holding of the trial court, and not have permitted the statute to be invoked against the complainant, if it should finally appear that he was only in constructive possession of the land. This Court afterwards so understood, and applied the Russell case in White v. Noblin, 183 Miss. 92, 183 So. 914; and in Lee v. Smith, 189 Miss. 636, 198 So. 296.

In Bruce v. Smallwood, 188 Miss. 771, 196 So. 227; and Grant v. Montgomery, 193 Miss. 175, 5 So.2d 491, the Russell case was construed as holding that Chap. 196, Laws 1934, could not be constitutionally applied to a landowner whose land had been sold to the state for taxes, although he had only constructive possession of the land; but it was said that the statute could be constitutionally applied to such a landowner when his right of possession has been invaded by the state or its patentee by an adverse occupancy or possession of the land; and in that event the two-year period of limitation prescribed by the statute begins, not on the day that it was enacted, but when, and not until, such adverse possession begins. Neither Dingey v. Paxton nor Russell Investment Company v. Russell so held, and such construction of the statute was not necessary for the decision of the question presented in either Bruce v. Smallwood, or Grant v. Montgomery. The date fixed by the statute for the beginning of its period of limitation of the land sold to the state for taxes before its enactment is, "The date this act becomes effective." To provide another date for the beginning of this period of limitation is not within the province of this Court; for so to do is a legislative, and not a judicial, act. Moreover, the statute contemplates possession of the land by the state or its patentee in some cases; for its language is that the owner ". . . may bring a suit or action to cancel the title of the state, or its patentees, or to recover the land from the state, or itspatentees" (italics mine). Nevertheless, the statutory date for the beginning of its limitation in an action to recover the land in a case where the tax purchaser is in possession thereof is the day the statute was enacted. Such construction of the statute would transform it from one which cures defects in a tax sale by the failure of a landowner to begin an action to cancel the sale or recover the land within a stipulated time, to one conferring title on the tax purchaser who enters and occupies the land for that stipulated period. In other words, to a substitute for Sec. 716, Code 1942, and reduce the period of occupancy from the three years required by that statute to two years.

As we said in our former opinion herein, 19 So.2d 815, 816, "The principle announced in Dingey v. Paxton, 60 Miss. 1038, has withstood the challenges of the years, and still fully stands." In order that the truth of the statement may no longer be challenged by Russell Investment Company v. Russell; White v. Noblin and Lee v. Smith, all supra, and that they may no longer mislead, they should either be overruled, or if a softer expression is desired, disapproved, insofar as they hold expressly or by implication that Chap. 196, Laws 1934, is constitutionally valid, except as against a landowner who is in actual possession of the land sold to the state for taxes; and the statement in Bruce v. Smallwood, and Grant v. Montgomery, that this statute can be constitutionally invoked by the state or its vendee, if the state or its vendee has taken, and retains, possession of the land should be disapproved. Under Dingey v. Paxton, supra, Chap. 196, Laws 1934, cannot be constitutionally applied to the owner of land sold to the state for taxes, it matters not who is in possession thereof. Sec. 716, Code 1942, sets forth the legislative intent as to what the rights of a tax purchaser are when he is in the actual possession of the land.

It is true that Russell Investment Company v. Russell was overruled sub-silentio by the construction put upon it in Bruce v. Smallwood and Grant v. Montgomery insofar as it holds that Chap. 196, Laws 1934, can be invoked against a landowner whose land had been sold for taxes prior to the enactment of the statute, and who is only in the constructive possession thereof, but that case continues to mislead, as is evidenced by the argument of counsel herein.

As to Bruce v. Smallwood and Grant v. Montgomery, my Associates say that "whether the court was justified in" holding that the statements therein that this statute can be invoked against the owner of land sold by the state for taxes prior to the enactment of the statute, by the state or its patentees, if in possession of the land, "is doubtful, but, whether such construction was technically correct or not, looking only to the wording of the statute, we think it is too late now to reverse that holding, since it has become a rule of property and no doubt has been widely acted upon, and especially since the only sales involved are those which occurred prior to April 4, 1934." As hereinbefore pointed out, that question was not involved in those cases, and the statement thereof by the Court, in its opinions, did not enter into the decision of the rights of the parties then before the Court, and therefore are not within the general rule of stare decisis; City of Jackson v. Wallace, 189 Miss. 252, 196 So. 223; nor the specific rule thereof known as the "Rule of Property." Yazoo M.V. Railroad v. Adams, 81 Miss. 90, 32 So. 937. Neither is that question involved in the case we are now considering, for as pointed out in our former opinion, the appellant is not in possession of the land. But, if the Rule of Property is to be here invoked, nevertheless those cases should be expressly overruled as was done in Wisconsin Lumber Company v. State,97 Miss. 571, 54 So. 247, for as there held business transactions heretofore entered into in reliance on what they held will be protected thereby. See also Mississippi State Tax Commission v. Brown, 188 Miss. 483, 193 So. 794, 195 So. 465, 127 A.L.R. 919, 933.

I participated in the decision of Russell Investment Company v. Russell, concurred in everything there said and done, and accept fully my share of the responsibility for the error therein committed.