On petition for rehearing the case was reopened and briefs were permitted to be filed on the merits. It is urged in the brief of petitioners that Section Nine of the Murphy Act is a statute of limitations, that the suit is one against the State and cannot be maintained, that there was no duty on the Tax Collector to furnish the statements of taxes for 1935 and subsequent years as requested and that the failure of the Trustees of the Internal Improvement Fund to give notice to respondent cannot affect the sale.
Most of these questions have in the main been answered by former adjudications of this Court and will not be further discussed in this opinion. In our former opinion, we held in substance that respondent should in equity be permitted to redeem the lands in question if, as is alleged, when it applied for and paid the taxes for 1933 and 1934, the tax collector did not advise him that there was an outstanding tax certificate *Page 189 for 1932 which was held by the State and unpaid. This opinion is limited to the equity we had in mind.
The equity permitting redemption is this: It is shown that Respondent's taxes were paid for 1931 and prior years. There were accordingly no frozen taxes or tax certificates to be affected by the Futch Act, Chapter 16252, Acts of 1933, as later amended by Chapter 17400, Acts of 1935. The general law, Sections 947 and 984, Compiled General Laws of 1927, require that when tax certificates are issued, the assessor shall not extend the taxes on the rolls and that the tax collector shall not accept the taxes on the lands so certificated for subsequent years. The certificate in question was issued in 1933 for taxes of 1932.
In other words, prior to the Futch Act, as amended by Chapter 17400, Acts of 1935 the assessor and collector extended and collected current taxes of respondent contrary to law, there being an outstanding certificate for 1932 taxes while after the passage of the Futch Act, as amended by Chapter 17400, Acts of 1935 the collector refused to accept respondent's taxes for the years subsequent to 1934 when he was required to do so if respondent tendered them before they were delinquent, which was done. "The 1932 tax certificate would have been frozen under the Futch Act as amended by Chapter 17400, Acts of 1935 if the law had been observed, and the taxes for 1935 and subsequent years had been accepted." It is admitted that the 1933 and 1934 taxes should not have been paid to the tax collector but he accepted them and confused the taxpayer.
Cooley on Taxation (4th Edition, Vol. 3, Section 1272, page 2533) and the authorities generally hold *Page 190 that when the owner of an interest in land applies in good faith to the proper officer for the purpose of ascertaining the amount of taxes and of paying the same and is prevented by such officer's mistake, wrong, or fault, such attempt to pay is generally regarded as equivalent to tender; at least so far as to invalidate any subsequent sale of the property for such taxes.
We are accordingly convinced that in view of these equities, the confusion and error that was shown to have been committed by the taxing officers and the effort made in good faith by respondent, it should be permitted to redeem the lands in question. Taking one's property away from him is a serious matter and it should not be permitted by processes akin to that in which the spider weaves her web to entangle a fly.
The judgment filed herein on February 25, 1941, is reaffirmed on rehearing.
WHITFIELD, TERRELL, BUFORD, CHAPMAN, and THOMAS, J. J., concur.
BROWN, C. J., and ADAMS, J., dissent.