IN THE SUPREME COURT OF MISSISSIPPI

NO. 2002-CT-02036-SCT

W. B. CURTIS, JR.

v.

ROBERT A. CARTER, SR.,

DIETER HASE AND

ELISABETH HASE

ON WRIT OF CERTIORARI

DATE OF JUDGMENT: 10/23/2001

TRIAL JUDGE: HON. JAYE A. BRADLEY

COURT FROM WHICH APPEALED: JACKSON COUNTY CHANCERY COURT

ATTORNEY FOR APPELLANT: DAVID A. WHEELER

ATTORNEY FOR APPELLEES: BILLY PARLIN

NATURE OF THE CASE: CIVIL - OTHER

DISPOSITION: AFFIRMED IN PART; REVERSED AND

REMANDED IN PART - 06/23/2005

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

WALLER, PRESIDING JUSTICE, FOR THE COURT:

¶1. W. B. Curtis, Jr. appeals from the grant of summary judgm ent to Robert A. Carter, Sr.,

Dieter Hase and Elisabeth Hase. The Jackson County Chancery Court ruled that the City of

Ocean Springs violated statutory provisions regarding notice to lienholders following a

municipal t ax sale and set aside the entire tax sale. This judgment was affirmed by the Court

of Appeals. We find that the chancellor correctly set aside the tax sale insofar as it pertained2

to the lienh

olders’ interests, but that she erred in setting aside the entire tax sale inasmuch as

those persons having ownership interests in the property wer e not joined as necessary parties.

FACTS

¶2. On August 31, 1992, the City of Ocean Springs held a tax sale for taxes d ue for 1991.

Curtis bought the property which is the subject of this action at the tax sal e. The property was

not redeemed, and on October 20, 1994, the City Clerk is sued a “City Clerk's Conveyance,

Land Sold for Taxes” to Curtis. At the time of sale, two deeds of trust pertaining to the

property were recorded: (1) Deed of Trust from T ravis Taylor Lewis and Darla G. Lewis to

Dieter Hase and Elisabeth Maclin Hase in the amount of $30,000 dated December 4, 1985,

payable over a period

of 180 months; and (2) All Inclusive Deed of Trust from Milton T. Cox

and Deanna Cole to Robert A. Carter dated February 2, 1989, which secured $45,000 for a

period of 24 months. From the time between the tax sale and the clerk's conveyance, two other

documents were executed and recorded concerning the subject property: (1) Special Warranty

Deed fro m Dieter Hase and Elisabeth Maclin Hase to Robert A. Carter dated October 5, 1993;

and (2) Deed of Trust from Fred Burns and wife Teri D. Burns to Robert A. Carter, Sr., dated

January 30, 1994 , which secured $47,000 payable over a period of 240 months. Therefore,

at the time of the clerk’s co nveyance, the following persons had ownership interests in the

property: Travis Traylor Lewis, Darla G. Lewis, Mil t on T. Cox, Deanna Cole, Robert A. Carter,

Fred Burns and Teri D. Burns. The following persons were lienholders: Dieter Hase, Elisabeth

Maclin Hase and Robert A. Carter.

¶3. Carter, Dieter and Elisabeth Hase filed suit and a motion for summary jud gment to set

aside the tax sale because of insufficient statutory notice. The chancellor set aside the entire1 Even though there was no address for the Hases on the f ace of the deeds of trust, Miss.

Code Ann. § 27-43-7 (Rev. 2002) requires that the clerk send notice “addressed to the county

site of the said county.” The clerk did not do so.

3 tax sale, and, on ap peal, the Court of Appeals affirmed the chancellor. S ee Curtis v. Carter

,

2004 WL 2093735 (Miss. Ct. App. 2004). We granted Carter’s petition for writ of certiorari.

DISCUSSION

I. WHETHER THE CHANCELL OR ERRED IN

SETTING ASIDE THE TAX SALE INSOFAR AS IT

PERTAINED TO THE LIENHOLDERS’ INTE RESTS.

¶4. Section 27-43-5 of the Mi ssissippi Code Annotated (Rev. 2002) requires that a

chancery c lerk examine all deeds, mortgages and deeds of trust pertaining to the subject

prope rty and then send notice of the impending sale via certified mail, return receipt requested,

to all lienholders. For purposes of the sale of land for non-payment of municipal taxes, a

municipal clerk must issue the same notices and perform the same duties set forth in Miss.

Code Ann. §§ 27-43-1 through -11. Miss. Code Ann. § 27-43-4 (Rev. 2002). It is undisputed

that Carter received a noti ce but that it was not sent by certified mail. Therefore, the

chan cellor was correct in setting aside the tax sale insofar as it pertained to Carter’s interests

therein.

¶5. It is further undisputed that no notice was sent to the Hases. 1 Therefore, the chancellor

was correct in setting asi de the tax sale insofar as it pertained to the Hases’ interests therein.

II. WHETHER THE CHANCELLOR ERRED IN

SETTING ASIDE THE ENTIRE TAX SALE.4

¶6. Section 27-43-3 of the Miss. Code Ann. (Rev. 200 2) provides that notice shall be

served on anyone with ownership interests. The record shows that Travis Traylor Lewis, Darla

G. Lewis, Milton T. Cox, Deanna Cole, Robert A. Carter, Fred Burns and Teri D. Burns all have

ownership interests in the property. The record neither shows whether or not process was

issued for these persons nor whether or not these persons were served with process, but none

of these persons (except for Robert A. Carter) have been made parties to this proceeding.

¶7. The chancellor erred in setting a side the entire tax sale because certain necessary

parties (those per sons having ownership interests) were not before the court, and the Court of

Appeal s erred in affirming the chancellor’s judgment in its entirety. S ee, e.g., In re

Conservatorship of Brantley

, 865 So. 2d 1126, 1134 (Mi ss. 2004) (where conservator did

not join all persons with interests in settlement, chancellor’s award must be reversed).

CONCLUSION

¶8. We affirm in

part and reverse in part the Court of Appeals’ judgment. We affirm that

part of the Chancery Court of Jackson County’s judgment which sets aside the tax sale as to

the lienholders’ interests only. We reverse the Chancery Court of Jackson County’s judgment

insofar as it sets aside the entire tax sale and remand this case to that court for further

proceedings in accordance with this opinion.

¶9. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

SM ITH, C.J., COBB, P.J., CARLSON, DICKINSON AND RANDOLPH, JJ.,

CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

GRAVES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPAR A TE

WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.