Nevin v. Bailey

Cooper, J.,

delivered the opinion of the court.

By § 1709 of the Code of 1871, it was declared that “No suit shall be commenced in any court of this State to invalidate any tax titles to lands after three years from the time said land was sold for taxes.”

The defendants claimed the locus in quo under tax sales made after the adoption of the code, and more than three years elapsed after the sale and before the institution of this suit. The titles acquired by the defendants are attacked on the ground that the Board'of Supervisors of Lincoln County examined and received the assessment rolls under which the sales were made at an adjourned meeting, which meeting was not held at any time fixed by law for a meeting of that body, and also because the sales were made on the wrong days.

*436 Conceding these facts to be established, the question is, can the title of the defendants be now assailed on these grounds?

Considered as statutes of limitations, legislation of this character has been the subject of severe criticism, both by the courts and the text-writers, and grave questions of its constitutionality in certain circumstances have been suggested. See Cooley on Taxation 377 to 384, and authorities cited in notes.

It may be seriously doubted whether the statute partakes more of the character of a statute of limitations than of one declaring a rule of evidence or operating as a curative act. Whatever its appropriate name may be, its effect is to preclude any inquiry into the validity of a tax sale made after its passage and more than three years before the institution of the suit in which the deed of the purchaser is assailed as to any defective or irregular execution of those powers or duties which are conferred or imposed on the officers conducting the sale by the legislature, and not by the constitution of the State. Wherever there has been an assessment, charge, and sale which complied with the requirements of the constitution but which failed in any respect of conforming to those things which rested solely on legislative will and which might have been constitutionally dispensed with, or provided to bo done in the manner in which they were done, and a default on the part of the owner, then in the states of case named in the statute the title of the purchaser is protected from attack. W here, as in this case, the objection is made that the sale was made on the wrong day, the statute is to be read as especially and distinctly authorizing the sale to be made on the day named in the law, or on that on which it was made. To the objection that the roll was received and examined by the board of supervisors at an adjourned meeting, it replies by authorizing in advance that meeting to be held for that purpose on that day. It existed as a part of the revenue laws of the State, and its declaration was an admonition to those owning property subject to taxation, and an assurance to those who should become purchasers at tax sales, that after the lapse of a certain time from the day of the sale for taxes .all those requirements imposed by the legislature should be read as *437 directory and not.mandatory laws, and that no failure to conform thereto should be held to invalidate the title acquired by the purchaser.

Within this limit the constitutionality of the act seems to be undoubted, and within this limit fall all the objections raised to the title of the defendant.

On the appeal of Nevin, the judgment is affirmed; on the erossappeal of Bailey, it is reversed and eause remanded.