A sympathetic nature is in my judgment one of the finest attributes a man can have. After all, Judges are but human beings. It is only natural that sometimes their sympathies should reach in and react upon their processes of reasoning. It is a normal reaction that is to be guarded against at all times. With all deference I greatly fear that the majority of the Court has allowed their finer feelings of sympathy for the appellants, who are unschooled and unlettered Negroes, to deeply affect their judgment, and that such is reflected in the majority opinion.
But, as said in Tarver v. Lindsey, 161 Miss. 379, 137 So. 93, 96, "It is better that courts may be sometimes wrong, may sometimes fail to find justice, than at any time they shall act arbitrarily, or be bound by anything other than the record of the case as it is made out in court."
Feeling that the determination of this case should be based upon the record as presented to this Court with a sympathetic understanding of the claims of both sides, let us refer to the record and see the testimony that is before the court, and which testimony must control in the decision of this case.
Hattie James came from Chicago to Cleveland in the latter part of March and arrived there on a Friday, the 30th day of March. Her purpose in coming to Cleveland is disclosed as follows:
"Q. Now then you came then to Cleveland from Chicago in the latter part of March, 1945, and you came here for what purposes? A. To pay the taxes on the house, and paint the house.
"Q. You had sent the money for previous years to Cleo Wood to pay your taxes? A. Yes, sir, I did.
"Q. And you presumed that they had been paid? A. Yes, sir, I thought sure it was all paid."
From this it is undisputed in this record that when Hattie James arrived in Cleveland it was her understanding *Page 622 that all taxes for previous years had been paid in full and she was there, according to her own testimony, to pay her taxes for the current year.
The first Monday of April was on the 2nd, and she arrived at the Sheriff's office after noon. The sheriff had completed the sale of lands for taxes that morning. Then as to what occurred when Hattie went to the Sheriff's office we find the record as follows:
"Q. What did you say to the deputy sheriff? A. When I got in there I asked if I could pay the taxes for Will James and Hattie James taxes. Q. And what did he tell you? A. He said to me `Do you know it has been sold for taxes', and I then told him, `No, sir, I didn't.'" The Sheriff told her to come back again in order that he might have an opportunity to look up the information needed in regard to the taxes, and thereafter Hattie returned to the Sheriff's office and this is what she said took place: "Q. And what request, if any, did you make of him then? A. I asked him then to let me pay Will and Hattie James' taxes, and he said `I don't have a record of them and I don't have time to look it up, and you will have to go to the Chancery Clerk's office.'" Hattie then went to the Chancery Clerk's office and the following took place:
"Q. What request, if any, did you make of her? (The Deputy Chancery Clerk) A. I asked her if I could pay Will and Hattie James' taxes.
"Q. What reply, if any, did she make? A. She asked me who sent me there.
"Q. And what reply did you give her? A. I told her then I was sent there from the Sheriff's office.
"Q. All right; what did she say and do, if anything? A. She said she looked through the books, and then she said `Well, I don't have a record of that, Hattie. You will have to come back on Saturday.'"
Hattie then returned to the Chancery Clerk's office and this took place: *Page 623
"Q. And what request, if any, did you make of her? A. I asked her if I could still pay Will and Hattie James' taxes.
"Q. What did she say? A. She said she didn't have a record of it.
"Q. Well, did she permit you to pay it? A. No, sir, she didn't.
"Q. Then, what did you do? A. Well, I went on back where I was stopping."
Hattie then called upon Mrs. Shands, for whom she had formerly cooked, and this is what Hattie said took place:
"Q. Did you make any request of Mrs. Shands? A. Yes, sir, I did. Q. What was that request? A. I asked her if she could help me in any way to pay my taxes. I had been over four times trying to get to pay them, and I hadn't been able to pay them." Mrs. Shands then rang the Chancery Clerk's office and directed Hattie to go back to the Chancery Clerk's office. Hattie then returned to the Clerk's office and the following occurred:
"Q. All right; then what request, if any, did you make of her? (meaning the Deputy Chancery Clerk) A. That I wanted to pay Will and Hattie James' taxes.
"Q. What then did Mrs. Tatum say or do? A. She didn't say anything; she walked out of the room down the hall, and she came back with this piece of paper in her hand.
"Q. Well, after she came back what, if anything, did she do or say? A. She told me the amount was Sixteen dollars and some cents, and I said I want to pay it in full.
"Q. Wanted to pay it in full? A. Yes, sir.
"Q. What did you say? A. I said to her I wanted to pay the taxes in full, and she told me it was Sixteen dollars and some cents.
"Q. All right. A. And I gave her the money.
"Q. Were you then able, willing and ready and anxious to pay your taxes in full, and each and every dime of taxes owing on your property here? A. Yes, sir, I was. *Page 624
"Q. What purpose were you there for? What were you trying to do, if anything? A. I was trying to pay taxes, everything that was against the house, I was willing and ready to pay that, and asked to pay it."
Hattie was uncertain as to whether or not she had paid the proper amount and this uncertainty is revealed by the following question and answer: "Q. You thought it would be more than that because they told you it had been sold, is that right? A. That is right."
Hattie then went back to see Mrs. Shands and the following occurred, according to Hattie's testimony: "Q. What report then did you make to Mrs. Shands? A. I went back and I told her the amount that I had paid, the Sixteen Dollars and some cents, and say `I don't believe that would be all after he had told me it had been sold for taxes, just $16.00 I didn't feel like — I didn't believe that that could have been all that I owed, and I asked her, and she called and she said `I am calling the Chancery Clerk's office, Hattie, and see.' And she called the Chancery Clerk's office and they told her — . Q. Did she then say anything to you? A. Yes, sir, she told me that they said I had paid all of my taxes, all I owed. Now, Hattie, you can go on back to Chicago; you have paid all you owe."
Mrs. Shands testified that: "I telephoned the Chancery Clerk's office and said Hattie wasn't happy about the amount she had paid and the response was that she had paid the amount that the tax roll called for, or some words to that effect.
"Q. And substantially what information did you elicit from that? A. Well, it thoroughly satisfied me with the answer that she had paid all she owed.
"Q. Paid all she owed; whatever the words were that was the meaning that you got out of it? A. Yes, sir.
"Q. As to the words used by Mrs. Tatum you would not say? A. Well, I couldn't give it verbatim; it has *Page 625 been too long ago. Whatever she said satisfied me that Hattie did not owe anything else.
"Q. Was that the direction you gave Hattie? A. Yes, sir."
This is all of the testimony in this record showing any request made by Hattie James to the Clerk to redeem from any tax sale. The testimony of Mrs. Mary Emma Tatum, the deputy chancery clerk, with reference to what occurred, is as follows: "As best I remember — I don't remember exactly what she said — she said she came in to pay some taxes.
"Q. Did you understand what year it was that she wanted to pay? A. Yes, sir, she told me what year she wanted to pay.
"Q. What year was that, was that in 1945? A. In 1945, for the 1944 taxes.
"Q. Did she say anything about paying any other taxes than those taxes? A. No, sir.
"Q. Did she ask you, or anybody in your office to check the list of lands sold for taxes to see whether any other tax sales had been made on this land? A. She didn't ask me, and so far as I know, she didn't ask anybody.
"Q. Did she ask you for a complete statement of all the taxes due on the land? A. She did not.
"Q. Did she say anything to put you on notice, or to suggest to your mind that she asked you, or was wanting you to check back on the land sales for taxes to see if there was any other tax sale? A. No, sir.
"Q. Did you check back behind that tax sale to see if there had been a previous tax sale? A. No, sir.
"Q. You don't remember what Hattie James said when she came in? A. What do you mean, what she said about what?
"Q. About her taxes? A. Well, she said she came to pay her taxes, I assume she let it be known that she came to pay her taxes. *Page 626
"Q. And you assumed from that that she came to pay the 1944 taxes? A. She didn't say she came to pay any particular years.
"A. I don't recall exactly what she said, but I know that she did not ask to pay any other taxes, or ask me to look back to see if there was any other taxes advertised on it because if she had, I would have done it. That was our invariable custom."
If any demand was made by Hattie James upon the Clerk to redeem from the 1944 tax sale for the taxes for the fiscal year 1943, such demand must be found from the testimony set out in this opinion, for this is all the testimony upon the question in this record. And, unless such a demand can be found and such a refusal on the part of the Clerk as will estop him can be found from this evidence, then none exists in this record.
With all deference to the majority, this testimony convinces me that when Hattie James came to Cleveland she came for the purpose of paying her 1944 taxes. That is what she said herself. She had sent the money down to Cleo Wood for paying the taxes for previous years and she felt sure that all taxes for all previous years had been paid. Hattie testified to this herself. When she went to the Sheriff's office it is inescapable that she went for the purpose of paying the 1944 taxes, and had she gotten there before the land had been sold by the Sheriff she would have paid these taxes and gone on back to Chicago satisfied that all taxes due had been paid. The only reason she went to the Chancery Clerk's office was that she was informed by the Sheriff that the land had been sold for taxes and that it would be necessary for her to go to the Clerk's office to straighten out the matter of these 1944 taxes that she desired to pay. It was to straighten out the 1944 taxes, and this alone, that she went to the Chancery Clerk's office. According to her own testimony she did not have in mind any 1944 sale for 1943 taxes, because she felt they had been paid and she had in mind necessarily only the 1944 taxes that she had tried to pay *Page 627 at the Sheriff's office and because of the sale had been directed by the Sheriff to go to the Chancery Clerk's Office and settle the matter there.
Surely under the law there must be some request of the Clerk to redeem, and in addition a good and proper tender of the amount due must be made to the Clerk, unless tender is excused by a showing that the Clerk would not have acepted the tender if made.
In 62 C.J., p. 670, Sec. 38, the rule with reference to tender is stated as follows: "The rules which govern tenders are strict, and are strictly applied and where the rules are prescribed by statute or rules of court the tender must be in such form as to comply therewith. The tenderer must do and offer everything that is necessary on his part to complete the transaction, and must fairly make known his purpose without ambiguity, and the act of tender must be such that it need only acceptance by the one to whom it is made to complete the transaction. The tender must be made in good faith, and must be definite and certain in character, so as to leave no reasonable doubt that the tenderer intended at the time to make full and unconditional payment. The tenderer must ordinarily declare upon what account the tender is made. The tenderee must be given a reasonable opportunity for intelligent action, and to make an examination or inquiries pertaining to his rights in connection with the transaction in which the tender is being made; readiness to tender is not the equivalent of tender, nor is an offer to purchase a tender of payment . . ."
In Harmon v. Magee, 57 Miss. 410, this Court said: "In view of the serious consequences to the creditor of a doctrine that must often result in the absolute destruction of the debt, and in view of the strong temptation which must exist to make, or at least to prove, sham tenders, the evidence on the subject should be so full, clear and satisfactory, as to leave no reasonable doubt that the tender was so made that the holder must have understood it at the time to be a present, absolute and unconditional tender, *Page 628 intended to be in full payment and extinguishment of the mortgage and not dependent upon his first executing a receipt or discharge or any other contingency."
In the case before us the evidence in the first place does not show that Hattie James in her statements to the Clerk ever disclosed to the Clerk a definite and certain request to redeem from the 1944 sale, nor does it show that she fairly made known to the Clerk such a purpose; or that the Clerk could possibly have been advised from what she said that she had any desire to redeem from the 1944 tax sale. In Harmon v. Magee, supra, it is the express holding that the evidence on the subject should be so full, clear and satisfactory as to leave no reasonable doubt that the tender was so made and that the Clerk must have understood it at the time to be a present, absolute and unconditional tender of the amount due for redeeming from the 1944 tax sale and that Hattie intended it to be in full payment and extinguishment of the State's rights under that sale. No such interpretation can reasonably be placed upon the evidence in this case.
In McLain v. Meletio, 166 Miss. 1, 147 So. 878; Kelly et al. v. Coker et al., 197 Miss. 131, 19 So.2d 519; Beauchamp v. McLauchlin, 200 Miss. 83, 25 So.2d 771; the cases relied upon by the majority opinion, the Court there had before it in each case a direct and unequivocal request on the part of the tenderer to "redeem" and an absolute and unqualified refusal on the part of the Clerk to accept the redemption money and the offer made to the Clerk was full and clear. There was no reasonable doubt left by the evidence of the fact of the offer to redeem and the refusal by the Clerk to make the redemption. It is a far cry from the facts in those cases to the facts in the case here. Those cases simply have no application to the case at bar. On the other hand, in Little v. Gilmore-Puckett Lumber Co., Miss., 23 So.2d 918, the Court used this language: "The case is not saved by Kelly v. Coker, 197 Miss. 131, 19 So.2d 519, for the record does not show *Page 629 any estoppel against the clerk by a demand for a complete disclosure of all taxes due with the tender thereof?" Neither does the record here show any estoppel of the Clerk by a demand for a complete disclosure of all taxes due with tender thereof.
Does the proof in this case establish any refusal on the part of the clerk to accept any tender of the redemption money for the 1944 tax sale? It is difficult to see how any such conclusion can be reached from the testimony in this record. The conclusion that is forced upon my mind by the evidence in this record is that not only did the clerk not refuse to accept a tender of the money for redemption from the 1944 tax sale but the clerk did not know and had no reason to believe that any such tender was even contemplated. Can any one say from the testimony in this record that the clerk is shown to have refused to permit Hattie to redeem? Certainly not, if we look to the testimony alone, as we must do. The only reasonable inference that can be drawn from the evidence is that Hattie did not inform the clerk that she wished to redeem from the 1944 tax sale; she made no tender of the necessary redemption money; the clerk did not know and is not chargeable with knowledge, by law, that she wished to redeem from the 1944 tax sale; and most assuredly he would have accepted the redemption money and permitted her to redeem had she wished so to do and communicated her desire to the clerk.
In addition, it has been announced as fundamental law in this State that the finding of fact by the Chancellor is conclusive upon this Court unless manifestly wrong. Griffith's Chancery Practice, p. 783, Section 674; Fox v. Matthews, 33 Miss. 433; Rose v. Jones, 118 Miss. 494, 496, 78 So. 771; Powell v. Tomlinson, 129 Miss. 658, 659, 92 So. 583.
This testimony convinces me that the Chancellor below was manifestly correct in his finding of fact and I do not feel that this Court can reasonably find from the *Page 630 testimony in this record that he is manifestly wrong. It is for this reason that I must, with all deference to my fellow judges, dissent from the majority opinion in this case.
Alexander, J., joins in this dissent.