Dodds v. Marx

| Miss. | Apr 15, 1886

Campbell, J.,

delivered the opinion of the court.

The landowner must be protected by payment of the taxes under an assessment sufficient to uphold a sale of the land for taxes, if payment was not made. If there are two assessments of his land, each sufficient, if it were the only one, to support a sale, and he pays under either, a sale under the other is unlawful.

Only one assessment can be lawfully made. The owner knows this, and finding one may assume that it is the only one, and act accordingly. He is not bound to inquire if there is another, or to take notice of it if it exist, and if he has knowledge of it he may pay under that most favorable to him and thereby acquit his land if the assessment is not corrected by the proper authority. This results from the proposition that payment under an assessment sufficient to carry title in case of a sale under it acquits the land from liability to sale. The validity of a sale for taxes depends, not on the knowledge or conduct of the owner of the land, but on the assessment and delinquency for taxes. If there is a valid assessment for taxes duly levied and they are unpaid, the power to sell arises independently of the knowledge or ignorance of the owner of the land. The whole proceeding is in invitum, and depends on the law and not on consent. Therefore, the validity of a sale for taxes is determinable by the sufficiency of the assessment to fix the charge, the delinquency, and the sale to meet the charge imposed’.

The description in the assessment under which payment was made was sufficient, as it could be applied by the aid of parol evidence to lot two and thirteen feet off of lot three, square three, in the Haley plat, and it is clearly shown that it was intended for these .parcels.

Had there been no other assessment and no payment, and a sale under this assessment, it would have been upheld on the evidence, and as a sale under that description would be good payment must be held to prevent a sale. The code, §§ 490, 491, provides for the admission of parol evidence, if there is “ enough in the description on the roll to be applied to a particular tract of land by the aid of such testimony,” and that a description, “ as a part of a designated tract or division shall be held to embrace such part as is the subject of separate ownership as one tract.” Where part only of a lot is owned by one, the remainder is the subject of separate ownership. So, in all such cases at-least, two parts are subjects of separate ownership, and it is only where the assessment roll shows the owner of the part meant or contains some other sufficient indication that the provision of the statute can apply. Part of a designated division of land being assessed to him who owns a part of it, the law applies the description to the fact of ownership, and makes that definite and certain which but for the statute would be void for uncertainty. The roll must furnish the clue which, when followed by the aid of parol testimony, conducts certainly to the land intended. It is admissible only to apply the description on the roll, which must give the start and suggest the course, which, being followed, will point out the land intended to be assessed.

Payment of taxes on the wrong land will not affect a sale of that on which taxes are due and unpaid, even when the payor intended to pay on his own and failed by mistake to do it, because the power to sell does not depend on the purpose of the owner, but on the fact that he does not pay, and payment by mistake on other land does not avail to prevent a sale of that actually delinquent. Here there was not a mistake as to the land paid on, but a double assessment, both good, and payment under one.

The tax collector should have discovered the mistake, and have returned to Marx the money paid under the erroneous assessment, and then would have been entitled to claim the taxes due under the proper assessment, and, if they were not paid, could have lawfully sold the land under that assessment.

Affirmed.