November 28, 1903. The opinion of the Court was delivered by The plaintiffs in these two cases sue separately to recover different parcels of land, but the action in other respects being based on the same allegations of fact, and involving the same legal questions, were heard together by consent in the Circuit Court and in this Court. The defendants demurred to each of the complaints on the ground that it did not state facts sufficient to constitute a cause of action. In overruling the demurrers, the Circuit Judge decided a number of interesting questions, and both sides have appealed.
It appears from the complaints that one Wm. F. Proctor was the owner of two tracts of land in Beaufort County, known as "Cotton Hall Farm" and "Winterdale Place," containing respectively 600 acres and 375 acres; and that on November 15th, 1898, he conveyed "Cotton Hall Farm" to the plaintiff, Marion Rush Dickson, and "Winterdale Place" to the plaintiff, Eliza Dec. Dickson. Under his conveyances they seek to recover in these actions the lands from the defendants, Cornelius Burckmyer and H.G. Burckmyer, who, as the complaints allege, claim title by virtue of a purchase of both tracts together as one tract at a sale made by the sheriff of Beaufort County under a tax execution against W.F. Proctor, issued for taxes claimed to be due for the fiscal year beginning January 1st, 1899, the sheriff's deed therefor having been executed on or about June 18th, 1900.
The plaintiffs, under eighteen different heads, allege facts concerning the levy and assessment of the taxes and the sale by the sheriff, which they insist make the sale illegal and *Page 533 void. The demurrers raise the question whether, assuming these allegations to be true, the defendants' title would be defeated by any or all of them. The grounds upon which the tax title is assailed, as stated by the plaintiffs, will be printed in the report of the cases, and we proceed to their consideration without quoting the complaint or the exceptions. In considering these grounds, it should be borne in mind that the right to tax property, so essential to the very existence of government, can be enforced under the laws of this State, only by subjecting property to sale for non-payment of taxes assessed against it. To hold tax sales invalid for slight and technical irregularities, would, therefore, be to unreasonably embarrass the State in the collection of its revenue. The sound view is that all requirements of the law leading up to tax sales, which are intended for the protection of the taxpayer against surprise or the sacrifice of his property, are to be regarded mandatory and are to be strictly enforced. On the other hand, those provisions of the statute, designed merely for the guidance of the officer in order to secure the due and orderly conduct of the public business, concern the State only, and as to the individual taxpayer are to be regarded directory; and the Courts will not in his behalf declare a tax sale void for failure by the officer to follow the strict letter of such provisions of law. Cooley on Taxation, 471; French v. Edwards, 80 U.S. 510. The questions here involved should be considered in view of this general principle.
The plaintiffs' first position is that, although the tax levy for county purposes for the year 1899 was fixed by the General Assembly, the tax sale was of no effect because the fiscal authorities of Beaufort County failed to levy this tax, as provided by article X., section 13, of the Constitution of the State. We agree with the Circuit Judge, that the case of Railway Co. v. Kay, 62 S.C. 28,39 S.E., 785, is directly opposed to the plaintiffs' view.
The next question is whether there was a valid levy of the three mills school tax, provided by article XI., section 6, of *Page 534 the Constitution, in these words: "The existing county boards of commissioners of the several counties, or such officer or officers as may hereafter be vested with the same or similar powers and duties, shall levy an annual tax of three mils on the dollar upon all taxable property in their respective counties, which tax shall be collected at the same time and by the same officers as the other taxes for the same year." * * * Section 13 of "An act to raise supplies, etc.," for the fiscal year commencing January 1st, 1899, 23 Stat., 157, is as follows: "That the county board of commissioners in each of the several counties of this State shall levy a tax of three (3) mills on the dollar upon all taxable property of their respective counties, for the support of public schools in their respective counties, which shall be collected at the same time and by the same officer as the other taxes for this year, and shall be held in the county treasuries of the respective counties and paid out exclusively for the support of public schools, as provided by law." This school tax was charged against the land in dispute by the county auditor; but the complaint alleges no levy was made by the county board of commissioners.
Whether this was a legal tax, depends upon the meaning to be given to the word "levy," as used in the sections of the Constitution and of the statute above quoted. Does it import that some distinct official action by the county board of commissioners was necessary before the tax could be entered for collection? It will be observed that the Constitution is mandatory in requiring the levy to be made by the county board of commissioners, and leaves no discretion of any kind to that board. After much consideration, the Constitutional Convention of 1895 rejected a proposition to require the General Assembly at each regular session "to empower and authorize" the county board of commissioners to levy an annual tax "not exceeding three mills." In the most explicit language, the Constitution has thus made the three mill school tax a permanent charge on all property, not to be lessened by any official action short of constitutional *Page 535 amendment. Fixing the rate of taxation and ordering that it shall be levied, is the creation of the tax. This excludes from the act of levying, which is required of the county board of commissioners, any signification of creation. The duty to levy imposed on the board is, therefore, purely ministerial, and only imports that it should take such action as would result in the tax being placed on the auditor's books. This could be done by serving on the auditor a resolution directing him to enter the tax, or in any other appropriate method. In other words, the ministerial action required of the board is to aid in the collection of the tax by taking steps to have the tax entered on the books containing the tax levy. The county boards of commissioners have no power to do anything more or less than require that the tax be entered; and if it is entered without the formality of the requirement, it seems quite manifest that their formal mandate becomes unnecessary, and its absence does not affect the legality of the entry.
This conception of the meaning of the word levy, as here used, is supported by the following very clear statement of the distinction by Associate Justice Gary, in the case ofRailway Co. v. Kay, supra: "The word `levy,' as hereinbefore shown, is frequently used in more than one sense, and its meaning in a particular instance is to be determined by resort to the context. It is sometimes used for the purpose of conferring all the powers incident to the creation and collection of a tax; as when `corporate authorities are vested with power to assess and collect taxes for corporate purposes,' while, again, it is only intended to confer administrative powers in the collection of the tax, without reference to its creation, and this is the sense in which it is used in the 13th section. By this construction alone can force and effect be given to all the foregoing provisions of the Constitution. It will be observed that the 13th section makes no reference to the creation of the tax, which only could be done by the General Assembly, or by the county after the General Assembly had `vested it with power to *Page 536 assess and collect taxes for corporate purposes.' The intention was that the taxes for the subdivisions of the State should be collected by the respective fiscal authorities thereof, whether imposed by the General Assembly or the corporate authorities of counties, c., when vested by the General Assembly with power to assess and collect taxes for corporate purposes." See, also, Cooley on Taxation, 325, note. For these reasons, we think the first, second, third and fourth grounds assigned by the plaintiffs for alleging the tax title invalid are unsound.
The plaintiffs' fifth position is that the land which was sold as the property of Wm. F. Proctor consisted of two tracts, and the county auditor entered them for taxation as one tract and not separately. The complaint fails to allege that they were returned for taxation as separate tracts, or that they were not contiguous, or that they were separate from each other in any respect except in the names by which they were called. There is no sufficient allegation that the auditor entered two distinct parcels of real property as one, in violation of section 289 of Revised Statutes of 1893 (Code of 1902, 356).
The sixth allegation against the tax title is that the aggregate per cent. of taxation was fourteen and one-fourth mills, and the auditor, under section 288, of Revised Statutes of 1893, should have disregarded the fraction of one-fourth of a mill in his computation. This construction of the statute is obviously erroneous. The meaning of the law is that where the sum resulting from the computation of the tax on any particular parcel of property requires for its exact expression any fraction less than a half mill, such fraction shall be dropped.
The plaintiffs in their seventh objection allege the assessment of the property to have been $2,350, upon which the tax should have been computed at fourteen and one-fourth mills, making $33.4875, whereas the sum of $34.49 was charged and execution issued therefor. There is no allegation that Proctor, the owner, was exempt *Page 537 from poll tax, and the one dollar excess may be referred to this liability. Cooley on Taxation, 498, note. The case ofWilson v. Cantrell, 40 S.C. 131, 18 S.E., 517, holds the poll tax is properly included in the execution against property. Taxes cannot, however, be held to constitute a lien on property without statutory authority. Barker v. Smith, 10 S.C. 228. The statute does not expressly or by implication make the poll tax a lien on the property of the taxpayer. The land in this case had been conveyed away before any attempt to levy under the execution, was made, and it would have been illegal to levy on and sell the land to enforce the collection of the execution, if it had been based on the grantor's poll tax alone. If, on the other hand, the alleged excess arose from an error in calculation, we are not prepared to say an excess of one dollar in an aggregate tax of $33.49 is sufficient to invalidate the sale. It is true, the sheriff is required to levy on so much property as may be sufficient to satisfy the taxes, and if the taxes are increased by illegal additions, the taxpayer suffers injury by reason of the greater quantity of property it becomes necessary to seize and sell in order to satisfy the execution. State v. Hodges, 14 Rich., 256; Cooley on Taxation, 429; 25 Am. Eng. Ency. Law (1st ed.), 387. But the error here was too small for the Court to suppose it would have interfered with payment by the owner and recovery of the excess, under section 340 of Revised Statutes of 1893, or that it led to the sale of any more property than would have been sold if the execution had been issued for the true amount. The allegations of the plaintiffs in the seventh ground of their attack, if established, would not defeat the tax title.
Section 347, Revised Statutes 1893 (Code, 1902, 421), requires the auditor to issue tax executions to the sheriff in duplicate, and provides that the executions shall "run substantially" in the form therein prescribed. In case of sale, the sheriff is directed to attach the duplicate to the title. It is alleged here that only the original was given to the sheriff, and he attached this instead of the *Page 538 duplicate to the deed. This was a mere irregularity, which could not possibly be prejudicial to the taxpayer. The law in this regard was intended to provide proper evidence of the sale, in the interest of the State and of the purchaser. In no case could it be of consequence to the taxpayer whether the original or the duplicate was attached to the deed.
It is also alleged the original and duplicate forms of execution were only partially filled out, the name of the defaulting taxpayer and the amount of the tax not being inserted in the printed form of the mandate. It is true, that an execution without a mandate is usually regarded void. Freeman on Executions, 38. In this case the execution stated the tax and the name of the person who had made default. We do not think the mere omission to repeat the amount and the name in commanding the sheriff to levy would invalidate the execution. In Kingman v. Glover, 3 Rich., 27, the Court says: "If the process which the tax collectors are authorized to issue, does, in substance and effect, comply with the provisions of law, and afford to the owner of property the notice which may be necessary for its protection, formal and technical exceptions may, without inconvenience or danger, be disregarded." We think, therefore, the execution was valid, notwithstanding these alleged irregularities, and the eighth and ninth objections to the tax title are not well founded.
The next allegation is that the sheriff failed to "seize and take exclusive possession" of the land. The general rule is that actual seizure of possession by the officer is not necessary to a levy where the debt which is the basis of the execution is a lien on the property. Freeman on Executions, sec. 280. In this State, the entry of the levy on an execution issued on a judgment has been held sufficient on the ground that no statute requires actual entry and possession of the land. Martin v. Bowie, 37 S.C. 115. A tax execution stands upon an entirely different footing, because the statute explicitly requires the sheriff to "seize and take exclusive possession" under such an execution. "Under and by virtue of said warrant or execution, the *Page 539 sheriff shall seize and take exclusive possession of so much of the defaulting taxpayer's estate, real or personal, or both, as may be necessary to raise the sum of money named therein and said charges thereon, and, after due advertisement, sell the same, etc." (Revised Statutes of 1893, sec. 349, Code of 1902, 349.) The requirement is one which greatly concerns the defaulting owner of the land, for the seizure and taking possession by the sheriff is a notorious act, which tends to give the defaulter and the community notice of the intended sale and thus prevent a sacrifice of the property. We think the tenth objection to the title is well founded.
The eleventh, twelfth, fifteenth and eighteenth objections were not sustained by the Circuit Judge, and the plaintiffs very properly acquiesced in his conclusion as to them.
The thirteenth position taken is that the levy for a tax of $33.4875 on 975 acres of land, which sold for $435, was an excessive levy. The sheriff cannot be expected to know in advance exactly how much land it will be necessary to sell to collect the amount due on process in his hands. It does not follow as a matter of law that the levy was excessive because the land sold for even ten times the amount of the debt, for land sometimes sells for much more than even the best judges expect. The sheriff is required to seize sufficient property, and it is a question of fact whether he has exercised a reasonable discretion. The title of a purchaser who has bought in good faith at a tax sale should not be disturbed because the sheriff levied on more property than was necessary, unless the levy was so excessive as to indicate oppression arising from design or inexcusable ignorance. Freeman on Executions, 253. The plaintiffs are entitled to have this issue submitted to the jury.
As we understand, the plaintiffs take the position in their fourteenth objection to the tax title, that C.L. Paul, Jr., who bid off the land, could not make a legal assignment of his bid to the defendants to whom the sheriff made title. There are authorities sustaining this position, where the assignment of the bid was made before the time *Page 540 for redemption by the owner had elapsed, on the ground that until the owner had lost his right of redemption, the purchaser had only a contingent right to the title, which in law is not assignable. In this State, there is no right of redemption after sale, and the purchaser has a right to demand the title as soon as his bid is entered and complied with. There is, therefore, no reason why he may not assign his bid as in other sales. Blackwell on Tax Titles, 374.
The sixteenth ground of attack, that the tax execution did not specify the "amount of taxes to each fund," as required by the statute, must be held not well founded, on the authority of Association v. Waters,50 S.C. 466, 27 S.E., 948.
The plaintiffs' seventeenth objection is thus stated: "That the sale of said real estate was not advertised according to law and was not made for cash." The allegation as to the advertisement is a mere conclusion of law without a statement of the facts upon which it is founded; but the direct allegation that the sale was not made for cash, if established, would be fatal to the validity of the sale, and is not demurrable.
The position taken by the defendants, that the failure of the plaintiffs to have the sale suspended under section 3 of the act of 1888 (XX. Stat. at Large, 52), is a bar to these actions to recover possession of the lands, is disposed of by the case of Bull v. Kirk, 37 S.C. 400,16 S.E., 151.
For the reasons above stated, all the plaintiffs' exceptions and the defendants' eighth, twelfth and fifteenth exceptions are overruled; and the defendants' first, second, third, fourth, fifth, sixth and seventh exceptions are sustained. The defendants' ninth and tenth exceptions are disposed of in the discussion of the plaintiffs' fifth and thirteenth objections to the tax title. As to the thirteenth exception of the defendants, it is sufficient to say that the presiding Judge did not hold that the sheriff's deed was not prima facie evidence of good title in the holder; but inasmuch as specific irregularities *Page 541 were pointed out in the complaint, it became necessary for him to consider their effect on the title. Defendants' fourteenth exception and the several subdivisions of their eleventh exception are substantially covered by their other exceptions, and are embraced in the foregoing discussion and adjudication. The result is that the judgment of the Circuit Court overruling the demurrers is affirmed, and the cause remanded to the Circuit Court for trial.