No. 35981. | Miss. | Mar 11, 1946
Appellants, by their bill in this cause attack the legality of a tax sale to the state of a section of land located in Marion County and the validity of the title claimed by appellees under a state patent thereto. Appellants were grantees of the owner of the land at the time of the sale. Appellees say the tax sale was valid and they have a legal title under the state patent, but, if not, that they have a good title by adverse possession under Chapter 196, Laws of 1934, Sec. 717, Code 1942. The chancellor decided in favor of appellees.
The first attack upon the legality of the tax sale is that no valid tax levy was made by the supervisors for the year 1928, under which levy the land sold for taxes. The specific objections are that the order of the supervisors did not (1) order the tax rates expressed in mills or fractions of a mill; and (2) did not specify in their order that the taxes were to be collected upon each dollar of valuation as shown by the assessment rolls of the county.
The first contention has much merit. Chapter 253, Laws of 1920, under which this levy was made, provided *746 that the supervisors "Shall order the tax rates each expressed in mills or fraction of a mill . . ." The order for the levy in this case reads:
"General County .................... 6"
"Road Building Bond Redemption ..... 10 3/4",
and so on through the various purposes covered by the levy. At the end of the order made that day appears these words: "Balance of levy to be fixed Tuesday, November 13th."
The order of November 13th recites:
"Levy Completed:
"Coming on for consideration the completion of the tax levy for the school districts of said county for the year 1928, it is hereby ordered that the following levy be made for said year, to wit: . . ."
Then follows, each on a separate line, the objects of the levy and the rate for each object, duly expressed in mills and fractions thereof. As illustrative, the first line reads:
"Hickory Grove Consolidated School ...... 10 mills."
Appellants assume that these orders, although considered together, do not expressly fix the rate in mills. They say the statute is mandatory that this be done, else it cannot be known whether the rate is fixed in dimes, dollars or doughnuts, and if there is a doubt about the matter, this doubt must be resolved in favor of the taxpayer, citing Chickasaw County v. Gulf M. O.R. Company,
As against these contentions, appellees urge that the statute requires the levy to be made in mills, and that the supervisors had no power to designate, intend, or mean, any other denomination, and that the statute must be read into the order; that it is common knowledge that for time immemorial such levies have been based only upon mills and that these two orders taken together show that the rate was fixed in mills. Had the orders been reversed, and the last preceded the first, there could be little doubt that, considered and construe together, they fixed the rates in mills. We think, under all the circumstances, that should be the construction in their present form. The caption to the first order is "The Levy for Fiscal Year 1928"; then follows the objects and rates in figures, and at the end of the order that day is the recital "Balance of levy to be fixed Tuesday, November 13th." Preceding the next order is "Levy Completed," and then the order recites it is a completion of the tax levy for 1928, specifying the objects and naming the rate in mills and fractions thereof. The two orders expressly connected make each a part of the other, and together constitute one order, and we believe a fair and reasonable construction is that all the figures indicate mills, all being *748 in the same vertical column and part of them being expressly designated as mills.
As to the second question, Chapter 253, Laws 1920, under which the assessment was made, does not require the order of the supervisors to specify that the taxes are "to be collected upon each dollar of valuation, upon the assessment rolls of the county, for county taxes." That provision is a direction to the collector and not the supervisors.
Before leaving this question, we are constrained to again caution supervisors to make their orders full, comprehensive and clear, and have them prepared with great care, so that the public business may be settled and that illegal results and expense and annoyance to the people may be avoided. While we uphold the foregoing order under all the circumstances here, we in no manner commend it.
It is next said the sale was void because the tax collector, who made the sale September 2nd, did not file his list of the lands sold to the state until September 7th, the statute then requiring the list to ". . . be immediately filed in the office of the clerk . . ." Section 8297, Hemingway's Code 1927. Appellants cite Salter v. Polk,
In the case at bar, there were one hundred and fifty-six sales to the state and seventy-three to individuals, a total of two hundred and twenty-nine. The collector commenced the sales on September 2nd, and the statute required him to continue from day to day thereafter until all lands delinquent for taxes had been sold. He properly showed on his list that all of these sales took place on September 2nd, yet it would seem impossible, as a matter of fact, for him to have made two hundred and twenty-nine sales between eleven o'clock in the morning and four o'clock in the afternoon of one day. Some of the lands evidently were in large tracts. The land in controversy constituted one entire section. It was his duty to first offer forty acres, and if that parcel did not produce the taxes due on the entire tract, then to add another forty and so on until the entire amount of the taxes, costs, etc., were produced. No doubt it actually required some two or three days to make all of these sales. But, in any event, we cannot say that the filing of this list within five days after the beginning date of these sales violated the statute and rendered all tax sales in the county void, especially since we do not clearly grasp the importance of the reason impelling the enactment of so drastic a requirement, which might so often lead to the disastrous result of invalidating all tax sales throughout the county, although all of them might be entirely regular and legal in all other respects.
The certificate of the tax collector attached to the list of state sales filed with the chancery clerk stated that the sales were made September 2, 1929, ". . . for delinquent taxes for the fiscal year 1929, pursuant to the requirements of law." Appellants, in an amendment to their bill, say the recital that the sales were made for delinquent taxes for 1929 rendered all of the sales void, because (1) oral proof is not admissible to show that the sales were for the year 1928; and (2) the chancery court has no power to permit the true facts to be shown and to reform this list in accordance therewith. Appellees *750 reply that this is not an effort to reform the list but to show that the recital is a clerical error, which fact is shown by the certificate itself and also by an abundance of record and documentary evidence and no resort to parol is necessary, and that appellants are not in position to invoke the parol evidence rule because their entire case is grounded upon an attack upon the validity of the tax levy for 1928, which is necessarily an admission that the recital in the certificate was a clerical error.
On the question of the competency of oral evidence to contradict this certificate appellants rely upon Reed v. Reed,
On the question that a tax collector's deed cannot be reformed, able counsel for appellants cite Bowers v. Andrews,
In the Bower case, the deed was void for uncertainty in the description of the land, and the Court held parol evidence was not admissible to show the correct description.
In French v. Andrews and Bower v. Chess, the Court referred to the fact that the contestants had not admitted that the recital of the wrong years was a clerical error, and in the Chess case Judge Whitfield called attention to *751
Hardie v. Chrisman,
Now, dealing with the facts in the case at bar, as applied to the point under consideration, appellants, as complainants below, grounded their cause largely on the invalidity of the proceedings of the supervisors in making the tax levy for the year 1928. Time and again they stated in their bill that the sale in 1929 was for the taxes for 1928. For instance, they said there was ". . . a pretended sale of said lands by the Tax Collector of Marion County, Mississippi, to the State for taxes alleged to be due and delinquent on said lands for the year 1928, which pretended sale was had on September 2, 1929, a record of which is in Tax Sales Record Book No. 2 at Page 81, of the records of lands sold for delinquent taxes in Marion County." They further say that the supervisors equalized the taxes for the year 1928, and they attack that proceeding. Again the bill, in raising the question that the list was not filed immediately, says "The said pretended tax sale on September 2, 1929, for the alleged taxes of 1928 . . ."; further, that the time for selling lands delinquent for 1928 was the first Monday in April, 1929, but the supervisors fixed September 2, 1929, as the date of such sale. It is also alleged that September 2, 1929, was "the date on which the Tax Collector pretended to sell said lands to the State for taxes alleged to be due and delinquent for the year 1928." The *752 bill exhibited a copy of the tax levy for 1928 for the purpose of showing the levy was not made in mills, as shown in the discussion of that question above. It also exhibited a copy of the order approving the assessment for 1928, and of the notice in the newspaper to the taxpayers that the assessment had been equalized for 1928. The answer of appellees is directed alone to the tax for 1928. In other words, the entire case made by the pleadings is grounded solely and alone on the levy for 1928 and the sale on September 2, 1929, for delinquent taxes for 1928.
In addition to this, appellants themselves introduced the tax record book of the chancery clerk, and the clerk, in response to a question by counsel for appellants "does it show a sale of the Tax Collector on September 2, 1929, for 1928 taxes?" replied "Yes, sir"; the list of sales to individuals made September 2, 1929, and the chancery clerk testified that the sales to individuals for 1928 were made at the same time as the sales to the state. Appellants introduced the applications for the patents under which appellees claim, which applications recited that the sales for delinquent 1928 taxes were made September 2, 1929.
Appellees introduced the newspaper notice of intention to sell delinquent lands September 2, 1929; the original undelivered receipt made out to the owner of the lands in controversy, which had marked upon it "State 1928"; a certified copy of the list transmitted by the chancery clerk to the Land Commissioner, and the clerk's record of such sales, all showing that the sale made September 2, 1929, was for delinquent taxes for 1928. The only oral evidence of the fact that the sale in question was for 1928 was that of the chancery clerk elicited by appellants, as shown in the paragraph next above, and that of Elzy, the deputy sheriff who made the sales, elicited by appellees, that the sales were for the year 1928. It is thus seen (1) the entire case of appellants was grounded by their pleadings on a sale for 1928; (2) *753 that the entire proof, most of which was made by appellants, showed that fact; and that (3) all of the proof on that fact, except the oral statements of the clerk and the collector, as just set out, consisted of records and documents; and (4) that every allegation in the pleadings and every record and document showed that the statement of the collector in his certificate that the sale was for 1929 was erroneous. Thus appellants have not only admitted but have proved conclusively by record evidence that such statement was a clerical error and have brought themselves within the quoted rule from Hardie v. Chrisman, supra. It might be added further that the certificate itself shows this was a clerical error, because no sale could have been made on September 2, 1929, for taxes delinquent for 1929, because there was then no delinquency for taxes for 1929.
In the Cox case, supra [
Lastly, it is contended by appellants that the list of lands struck off to the state shows there were two sales of contiguous lands assessed to one owner in violation of Sections 6962 and 5268 Hemingway's Code 1917 then in force. An eighty-acre tract in Section 30, contiguous to Section 29, was owned by, and assessed to, the same person as Section 29 and the foregoing statute required that if a sale of the lands was made in an entirety that there be only one sale of these contiguous tracts. The *754
proof made by the list and the certificate in this case as to whether there was one or more sales is exactly the same proof shown by the list and certificate in State v. Wilkinson,
We, therefore, conclude that this was a legal tax sale and that appellees have a valid title to the lands in question as against appellants.
This makes it unnecessary for us to decide whether appellees have title by adverse possession.
Affirmed.