Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1874-03-20
DELINQUENT TAXES.
Important Suit in Shelby County
Decided.
Elaborate Opinion Of ChanceIIors Nor
gan and Waiker-AII About Lands
that Have Been sold for Taxes.


An appeal from this decision viii be
had to the Supreme Court;
Butler P Anderson, Revenue Commissioner for
Shelby county, complainant, VS.: Maurice L.
Pillow ct al.,,defendants,
These bills are filed by Anderson,
Commissioner of Public Revenue, to
collect past-due taxes, alleged to bedue
from the defendants to the State and
county. They are filed under an act OF
the Legislature, passed March 27,llS72,
and entitled "An act to amend an act
to provide for the sale of lands that
have been sold for taxes due the State,
and bought In by the Collector of Rev
enue, passed Dec. 6, 1871" The pre-
amble recites that large quantities of
land have, from year to year, been bid
in for the State, at tax sales, and that,
"by reason of the irregularity and void
character of such sales, the State has
been defeated for many years in the
collection Of a large amount of said
taxes" 1t is there enacted that the
various County Courts shall elect a
Commissioner of Revenue, who is au-
thorized to file bills in the Chancery
Court of the county where the lands
lie, describing "the lands as originally
assessed, in whose name assessed, the
amount assessed, and the date thereof,
and the amount remaining unpaid; and
if the proceeding is against part only
of the original tract, the bill shall, IN
like manner, describe such part. The
bill shall allege the State lien upon said
lands for unpaid taxes assessed against
it, and shall pray for an enforcement
of the same by sale of said land, and
application of the proceeds to the pay
ment of said taxes"
Some questions is made on the con-
stitutionality of this act. But as the
Supreme Court has distinctly recog-
nized its validity and constitutionality,
we do not deem it necessary to discuss
it.
The point mainly urged for the de-
PENDANTS is, that the bill shows that the
land has been once listed, assessed, con-
demned and sold to the State for the
full amount Of the taxes, costs and
charges; that the State thereby ac-
quired title to the land, and lost its
claim of lien for taxes, and that it
must therefore stand alone on its title,
to be asserted in the proper forum, as
any other claimant of the title to land
held adversely by another.
This point also we might dismiss, as
having been already passed upon by
the Supreme Court. The same point
was relied on in thecase of Webb, COM
missioner, VS.. Miller, decided at Knox
vile, September term, 1873, and dis
posed of by the court as follows: ut
is assumed In the demurrer that the
taxes were satisfied by thus bidding In
the lands. If this were so, then the
lands became the property of the State,
and the legal effect of the present
proceeding is, that the State proposes
to sell the lands for the purpose of col
Letting the amounts of the taxes so bid
upon them, giving the owners of the
land the privilege of paying up the ac-
crued taxes, with six per cent interest,
and retaining the lands. In this view,
the State clearly has a right to sell her
own lands in this way"
In these bills, it is alleged that the
sales were irregular and void" which
allegation would appear from the above
extract. Tot to have been made In that
case. But the question in both cases is
the same; for if the allegation is IN
necessary, it need not be proven when
made. This case also disposes of the
objection, that the allegation that the
sale was irregular and void" Is too
general; that complainant must be
more specific and circumstantial; stat
ing the exact points in which it was
! irregular and void. In our view of the
case, the statement that the sale was
irregular and void is not an allegation
of an affirmative fact to be proven by
the State, but an admission to be taken
advantage of by the defendants if they
choose TO do so. That it is so, we think
is manifest from a consideration of the
course that the pleading and proof ON
this point viii necessarily take; and
also from consideration of the attti-
| tude of the defendants herein. They
are made defendants as claimants of
the title to the lands, and can claim
the title upon no other ground than
that the sales were void. The argu-
ment for the defendants amounts to
this: that they, the defendants, are in
possession, claiming the title, and ne
cessarily claiming that the sales were
invalid; and yet when the State comes
forward conceding the invalidity Of the
sales, these defendants would require it
to prove it. They cannot do so. They
must either accept the concession or
disclaim the title. They cannot occupy
the double and contradictory positions
of maintaining the validity of the tax
sales and at the same time the validity
of their titles.
Suppose the execution of a deed,
doubtful in its terms, and which would
be construed a mortgage, or a sale with
right to repurchase, according to the
facts of the case, or an absolute deed
will serve the illustration as well. And
suppose the vendee should file bill,
alleging that it was in fact executed as
a mortgage, and praying foreclosure.
Undoubtedly in such cases the defend
ant might contest the allegation of its
being a mortgage, if the bill sought to
hold him personally liable for any de-
ffciency that might exist after sale of
the land. But as to the remedies
against the land itself, he could not
contest it; to do so, he must contend
that the deed was absolute, which would
of course amount to a disclaimer of
title on his part. These bills seek no
relief against the defendants person
ally. The remedy is confined to the
land itself. If defendants have any
rights in that, they must admit the in
validity of the sales.
On this point defendants seek to do
by demurrer what they can only be al
lowed to do by disclaimer.
The defendants make this same OBJ
lection, in another form, under the pro-
position that the States proper and
only remedy is by ejectment to recover
the title. In that action the State must
prove the validity of the sales, instead
of the invalidity, as here. Let us sup
pose the action brought, and that the
State has failed, and then filed these
bills. 1t could but allege that it had
failed to uphold the sale; in other
words, admit its invalidity. But if the
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