Cameron v. Whittington, 82 So. 311

82 So. 311 | Miss. | 1919

Ethridge, J.,

delivered the opinion of the court.

Whittington & McGehee filed a bill in the chancery court to confirm title to pertain lands, and alleged that the land was entered from the United States government and a patent duly issued from the government to one William Pickett, and that thereafter the said lands were duly and legally assessed for state and county taxes for the year 1910. The description on the assessment roll describing said land,as “the south part of section 24, township 6 N., range 3 E., one hundred and thirty acres. ’ ’ That the tax for the said years was not paid, and the tax collector after due notice and after default sold the said lands in accordance with law and the complainants became the purchasers, and that the period of redemption had expiréd and that they were the owners of said land and desired a confirmation of their title.

• It is averred in the bill that Amanda Cameron claims to he the owner and is in possession of the sonth part of the West half of said section, except thirty-two acres of the South half of the West half, being the Southwest part of said section, and that said Amanda Cameron claims to be the owner and is in full possession of all the South half of the West half of section 24, except said thirty-two acres. It is further alleged that Amanda Cameron has possession of the land belonging to the complainants and refuses to give them possession. Amanda Cameron was made a sole defendant, and it was alleged that the complainants know of no other party who has any claim or interest in and to the land sought to be confirmed. The tax deed from a tax collector made an exhibit to the bill shows that the land sold for taxes was assessed to Martha Cameron, and Martha Cameron was not made a defendant. The defendant demurred to the bill, the demurrer was overruled, and the defendant thereupon answered and denied that the complainants were the true legal and equitable owners of the said land, .and denied that the said land was duly and legally assessed for taxes due the county and state for the year 1910; and alleged that the assessment roll was absolutely void because the tax assessor failed to make and return said assessment to the board of supervisors on or before the first Monday in July, but that' he was állqwed until the fifteenth of July by the board of supervisors in- which to file it, and that it was filed on thé fourteenth day of July, and that no notice was published notifying the taxpayers that said roll was on file subject to objection, and that the board would hear objections as required by law; that during the said time there was a newspaper published every week in the county at the county site, and that The county assessor and the board of supervisors, each

’ and both, failed to publish any notice of the return and filing of the land roll or of the time at which objections thereto would be heard, as required by sections 4295 and 4303, Code of 1906, but in utter disregard of the provisions of said sections the board made an order that said assessment roll be received and approved, and that by reason of said failure the tas sale was utterly and absolutely void. The other allegations of the bill.were denied and the complainants failed to prove that any notice was published as required by section 4303 or section 4295, but introduced the tax deed and relied upon the presumption raised by statute to show compliance with all legal requirements; thereupon the defendant introduced proof that no notice was published in accordance with said sections, and on this proof the chancellor entered a decree confirming the tax title.

There are several points relied upon for a reversal, but we will only notice one, and that is the allegation and proof that there was no notice published as required by section 4303, which .is the section requiring the assessor, when he files his roll, to give notice thereof and date of the- meeting of the board to consider ■ the same, by publication in some newspaper published in the county, or if there be none, by posting at the courthouse for the space of three weeks. The law requires the assessor to complete his assessment and deliver the rolls, to the clerk of the board of supervisors on or before the first Monday in July of each year, and it is provided that a failure of the assessor to certify and swear to his assessment roll or to return it on the day named for its return shall not affect the validity of the assessment if approved by the board of supervisors. This provision of law it has been held must be construed in connection with all other provisions on the subject. McGuire v. Union Investment Co., 76 Miss. 868, 25 So. 367. It is also provided in the Code that the board of supervisors, under certain conditions, may extend the time for the completion of the roll until the first Monday in August.

The notices required by section 4304 form a part of a statutory substitute- for personal summons, and under the state and federal Constitutions notice must he given the taxpayer and opportunity to he heard before the assessment can become final and binding. Where the law fixes a definite time and place for a - person to appear, with opportunity to be heard, and provides that this notice shall be sufficient, it has been held this would constitute due process of law; but where the statute prescribes other and additional notice to be given, such notice must be given' in accordance- with the statute. Section 4303 of the Code seems not to have been construed by this court, but it has been held by this court in a number of cases that where a statutory proceeding is a substitute for a summons it requires a strict compliance with the terms of the statute to make such notice effectual and valid. Moore v. Summerville, 80 Miss. 323, 31 So. 793, 32. So. 294; Diggs v. Ingersoll, 28 So. 825; Ponder v. Martin, 80 So. 388. In the last case cited the rule is laid down in the second syllabus as follows: “Where publication is substituted for summons, the proceedings required by statute must be strictly followed. ’’

In our opinion the statute requiring the notice is mandatory and not directory. The judgment of the court below is accordingly reversed, and judgment will be entered here dismissing the bill.

Reversed and rendered.