and:trj.buDltl must beopel1to him wherein he may be heard for the pro'othis rights. ,Hlsuch opportunity is not afforded otherwise, then ,the is nothing shoulq I;l,ta'y:the a.ctIon court.m hIS behalf. The property of the complamant, to-Wit, thebpdge and Its approaches, so far are, within ,the ,boundaries of the state of Iowa, was property open to the knowledge of the county officials. It was not concealed nor hidden., The assessor neglected to assess it at the proper time. If the ab.ditdi'had'properly assessed the bridge, with notice, actual or conwould have, been valid; structive, to the complainant, such but instead of so doing the auditor made an assessment agninst complaina,nt of not owned by it, and now it is insisted that the latter should: be allowed to stand as the equivalent of the assessment that ought to have been made, but'which was not niade. 'fhis cannot be done. theass,essment in questi()n, and the ta;r:., based thereon, The Ipqst, held wholly voiG\, and the bridge company is entitled to a deand the ,removal of the; cloud caused qree' fo(tbe its the right to,recover back of the tax ,Pl1-1P, ,by Iowa Central ltailway Company is not presented ju,' the and is not considered or determined by the co.qrt." ,, ,'
WEsT "'. DUNCAN
OO'Urt,S.'ri. MUBi8sippt, S. D. August 20, 1889.)
L TAXA'MON-S1l'iTTO SET AstDii TAX-DEED-PutTIES. In. in a!lide a deed from tax c?llector, of land sold for of taxes, on tne ground that complamant, Within 12 months after the deed was:fiJ.ed ·for reeonWtendered to the purchaser all taxes,dllmages, interest, and '*lstB,an!l:because the ,tax collector failed before the sale,to,publish a list of the land as reqUired b)r .law, and further on the ground that, at the time of th6Sale,'J. eomplllinant ha,d" 'S,UftiCient'per,'sonal, proP,erty , which it was the collector's ", J duty,to Il.fstexha\lst, the not a proper party. ' '
. ',' "Wheretlle suit is also to 'set aSide a sUbsequent'deed' from 'the 'purchaser at the ,i .taxllale, such, purchaser, is,a necessary party. 8, SAl\IB-..Tu-.SALE· ' ' " It is '!l\)t necl!ssary in Mississippi that the tax collector, before selling land for delJ linquent taXes, shall fil"st:el4liBust the personal property of the delinquent.
Section of thecharwr ,of Pass Christian, in Mississippi, as amended by the act Itl86iprovil'll'ng that'fn/lalell for taxes all presumptions of law shall be In favor , of been Ilone by the officer, previous to, and, in making the saie, to comulUnh;ate a good title to the purchaser, and the salEl and title acquired shall only ,be Bet ,aside 'on satilsfaetory'proof that the taxes for which the land was Bold were NI'Uy P,a,idb, .IIale, Dotpreven,t the OWner O"f land Bold for taxes from' Bt,ling t!> set the aside, 00. the gr0\lrnd that the t!lJI: collector failed to pliblillli" a list, Of tile delinquent land as requh'eti 'by law. '
Such charter provides that within three days after the sale the tax collector shall execute an,d deliver to the purchaser a deed COnVeYing, the land to him, and providl.og :for ita at any time within 12 months ;from the day of sale. Tax-deeds are required to be flied for record with the clerk or other officer.
WJ!iS'l' V. DtJNCAN.
and to remllin !;qere during the time limited for redemption. .Held that, where the file his deed until four monthll after the tillle limited for retlemption begins to run from the date the deedis1llea;and: not the date of sale.
I. '. ·
In Equity. BiI1toset aside a tax-deed. Rob&t8 k7Vwinl18j :for complainant·. E.· J.. Bower8, for defendants.
HILL, J. The questions now presented for decision arise upon the demurrer of the defendants to the bill of complainant, which bill, in substance,,;alIEiges that coinplainaritis the trlie'and lawful owner of the· real .estate desCribed in the ,bill, and is situate in the town of Pass Christian, within: the jurisdiction of tl).iS:Cdurt;: that the defendant.r>uncan sets up .a pretendedititle and claini:thereto based upon a deed of conveyance executed to him by,John H. Lang,iofthedefendants to this bill; thatLltng claimed title to said land under a deed ofconveyance executed to him \byW; collector for :said. town' of Pass Christia.nl; but filed' fol" record until the' 3d day of Decemoer, .1888.. The bill 'flirther8,veril thilt, withitl'lessthim after the filing ofsaid deed ·for record; saidDuQcaq aJ)taxes, damages, by hiw.*otl,le:Said'Lang, to redeem which was refused by him. The bill further alleges :,that ,tbepretendedsale of: said real estate for taxes thereon wall ;illegal and void for the alleged reason that said tax collector faHed to have ,n;ijstof thepropertyopon which the 'taxes had not been paid published ·tin .the only :uewsplJ,pe!:' then published, in the .townof Pass Christian at .tl,1etime,. and· for the length ·of·time, required by· the amended charter "of,saiq town,. ,and .undar w:hich authority said sale is claimed to have ,been. made,o.nd for the: additional reason that complainant had .more than a sufijcicl)cyof personal' property in said town to have paid said taxes, .which-.said oollector did not ,seize and sell, which!t was his duty tohave'Q,one, bafore .selling said real estate;. that ·said pretended deeds .ofl13aid ,taxi collector to said Lang,.and said Lang to said Duncan, are .illegal and void, and cast a cloud on complaiuant's title; ,prays may be, so declared ,lcanceled, and set aside. .. . .Tpedemu:rrerQfsaid;tax.collector and said Lang sets up as grounds itherefor that they .arenot.,proper parnes to this and pray to be dis·missed with their costs. I am of opinion that, said Terrall is not a 'proper partyJo. this suit, and that as tQ him the demurrer must be sust4'Lined,.and the :pill dlsIllissed, but. that,as the. bill seeks to CaDcel, and 'SElt aside tbe: his deed 10 Duhcan, thathe'is a ·proper, if nQt a party, and that the demurrer as to him must ·be overruled,. whi¢lI br.ingsus to the consideration of the ·demurrer·oUhe .defendant D,ullcan. ,',Vhegroundsof demurrer .alleged a.re (1) that the bill on itsfaooshows ·'\ibnt cQmpIai»&n;t,has no. title to the real estate, described in bill; (2) that this Pi,ll<m, its face shows that defendant ,Duncan has a.goQdand jyalid tQ estate described in the bilh ' . _,.,'l'h!J: t-hat ;need bec c.onsideredalleged in. the bill: for/the
relief;soughtate,first, that complainant had sufficient personal propi'fl,'!PEl. to taxes of said real estate, and whICh should have first been exhausted before selling said real estate for any taxes due thereon. ,The charter ofsaid town leaves it discretionary with the collector as to whether he will sell the delinquent tax-payers' personal property found within the town, or sell the real estate, so that this ground for relief is not maintainable; and, if this were potao,,-underthe ruling of the supreme court of this state a like result
second ground. is'that the tax collectord:id not give the notice re'by, the oharter. that the, tax had not been paid on this property. ThaHhe noticewas:notgiven is admitted by its demurrer, but it is in,sisted, ol'lthepart: of.the defendant Duncan that this defect is cured by the'Pfo\1isionofsection 22 of the .charter of said town,as amended by the a.,t'o0886. This section 'provides thatsales ofplloperty within the Incorporate limits of said town for tax811 ,coUeoWdA)Y authority. of said tQwn, all presumptiQns Qf the favor hllvingbeen. dQne pre.viQus tQ, !n the saldsale,by th.e, Olficers, to CQmmUDlcate agoop and valid tItle to the purchaser; and said aale'. and the title acquired thereunder, shall only beset and held' f-or' naught upon: proof, satisfactorily made tQ the cprQper[cOlttttrying the title, that the taxes for which said properLy was SQld h'al;1 paid oft aM discharged to the proper otlicer before tbe sale .
took Thewnstttution, both of this state and of the United States, provides thatmhrian shall be deprived of his property except by due process of law. To divest a man of the, title to Maland for non-payment of taxes, there must be 11 lawful assessrnent of the value of the property, if based on itsvslue, by somerrian, Qr body of men, duly authorized by law to ulake the same; (2) there must have been a tax duly levied by said body of men, duly and legally authorized by law to levy the same; and (3) there .must have been default in paying the tax, and a sale and conveyance thereof made by S01l16 person authorized by law to make the same. Anything less than this would not be by due process of law, and therefore void under this .provision of the constitutions of both the state "and ,United States. The statute relied upon provides as matter of evidence tbat the presumpticm shall be that all was done that was required to be done, by the respective officers, in making the assessment, levy, and sale; but this, like almost all other presumptions, may be rebutted by sufficient evidence, the burden of making which is thrown upon those disputing. ,the validity of the title. The tax collector was not authorized :·.bylawtomake the sale without giving the notice required, and which demurrer admits he did not do. I arnsatisfied that this section of the charter does not contain the curative properties claimed for it. The legislature. has passed. acts providing that, unless suits are brought within certain i periods; one of five and another of three years, to invalidate tax., titlesf irregularity in the proceedings necessary to vest the title in the purchaser under the tax-sale shall be admitted to defeat is jritended to cure- such defects. The curative effect
WEST t7. DUNCAN.
of these statutes can only be applied to CBses in ,which the act done, or omitted to be done, could .have been authorized by the' legislature in the first instance, and not to cases incurable under tbeconstitution of the state or United States. These statutes of the state give to the tax-payer or owner of the property ample opportunity to bring his action to set aside the voidable title of the purchaser at the tax-sale for any want of compliance with the law, and for which the sale may be avoided. The literal reading of this provision of the charter cute off this opportunity; and, if such is the proper conetruction of the provision, it would be repugnant to the constitution, and void. But it is presumable that it was only intended to have the effect claimed after an opportunity was given to have the validity or invalidity of the title established by judicial proceeding. Without further consideration of this question, I must hold that the bill on its face shows sufficient ground for setting aside and cance,ling thetax-title. as prayed for, for want of the notice of the non-paymentoftpetaxes as required by the charter. . . The third and last ground alleged in the bill for setting aside the taxtitle is "tnat the deed was not filed with the clerk for 'rt:gistration" lIB required by the charter. All otber tax-title deeds are required to be filed with the clerk of the court, or some officer of the city, or other l1lunicipal corporation, and there to remain during the time limited for redemption by the tax-payer, or those holding under him. In the charter in this case, it is provided that within the three days after the sale the taxcollectorsball execute and deliver to the purchaser a deed conveying to him the land, upon payment of all taxes, damages, costs, and expenses, as stated in the charter, and giving to the tax-payer or owner the right to redeem the property within one year from the day of sale by paying to the pUl:chaser at the tax-sale all taxes, costs, damages, interest, and expenses.paid by him, either in the purchase or afterw8rds, growing out of the non-payment of the taxes. The purpose of this provision of the charter evidently was that the tax-payer, by going to the clerk's office and examining the records of the registration of deeds, might know whether Qr not the hmd or property had been sold, and, if sold, who was the purchaser, so that he could redeem the same on the terms provided in the charter. The bill alleges that the deed of the tax-collector was not filed for record until the 3d day of December, 1888, thoughexecuted and delivered to the purchaser on the 2d day of August, 1887, and the complainant had no notice of said sale and conveyance until after the registration of said deed, and that, within less than a year after the registration of said deed, he offered to redeem said real estate by tendeting taxes, damagell, interest, etc., which was refused, by said Duncan; aJI of which the demurrer admits. I am satisfied that, under a proper construction of the charter, the failure of Lang, the purchaser of the property, to file his deed with the clerk for registration, has been such a neglect upon his part in complying with the requirements of the statute as to rl;lnder the deed voidable under complainant's bill; but, under the charter, .Duncan, who stands in the shoes of Lang, will btl eIlJiUeq to all the taxes, damages,interest, and, COllts he has paid, v.42J.<'.no.8-28 '. . .
tl'ortfLlLng, or sinceresl1lting fronithe latlds. Thisis no hardship upon him, ''as he futistbe presumed to know that said deed had .not. been recorded "as, required by said TM 'result is that the demurrer will be 'overruled;,'and the defendants' Lang and Duncan allowed 30 days in . which to anlf1f'er the bill as to this te1ili..
LEll:' 1). SiMPSON.
,. (Circuf.t DoUTt, D. SoUth. CaroUna. Jun81l,189M
,i'" " . ' . '
,'fJ;XA'!,'J:mf Q1 COsT8....l'BJNTUlG.
, . Though there may have been agreements of counsel on both ,Ides in relation thereto, costs for printing the biU"atiswer, and eviaenoe in a·''Bliit in the circuit ..' Ulilitea. cannot pe there is no rule of court on the subjeot"and Dothinlf is said about suem costs in Rev. St. U. s. iS2$, providin, the fees'Mien may be'tUeet' . ,! .' .', , .',: . ,
;,'InEquity. " 'i' OGtregl&; cdtnplainant. ' ': £'. Lee ImdWlil8:k Orr, for!defendant·
,I , ,\': .':
'Sm:ONl,[ION, iJ"; i I this 'case halVe beenta'X'ed' :by the clerk. His:tantiotl' hasbeeu'brdllght up fot-review. ·Only two iteItlS are quescertain sum to the special master.' The lawful-ness bf/,this chargeii!rhot disputed.; The amount: only is criticised. 'Theother'item Is'a charge for $121 for printing the reoordand testi'mony. When the bill was filed, and the preliininaryinjunction granted, :the bill and 'the order were printed under a suggestion <if the court. 'When· th('l' !answer :wasflled, ii was also printed, at the suggestion of the ,defenda.nt's; attorneys, naturally wanted theinl.tlswei"in print, as ihe bill ha:dbeen printed. When all the'testimony Wl\sin,it was prepared for the· printer; counsel on ;both sides and the clerk of this court C"onfel'ring aboutw'ha1l pa;rts and how much ofitslioul"d be printed. When Was 'reached, the clerk, who had superintended and superintended this. The testimony ·the imd record were for and were used by both parties 'in the cause. so far as it appears, aboutpayiI1g the expense of the printing. The clerk was under the impressidfi that each share of this expense. How this 1mpression ;party would bear an .was denved heeanhotsay positively, except that both parties seemed to concur in' the necessity for 'printing, and united in preparing the matter to. :11e, printed, ahd both used ·the printed matter during all proceedings. So when;the bill for printing came in, sometime before the cause was' heard,he seht it to each"party, making requisition for one-half from eachi ,The com plainant promptly paid his half. The .defendant refuaedto ,p8yan-y,part of this expense, unless he lost the