78 Miss. 768 | Miss. | 1901
delivered the opinion of the court.
Land entered under the homestead laws of the United States may not be sold for taxes assessed before the time at which a right to a patent is perfected. A sale before such time is absolutely void, and cannot support, under §2735, code 1892, a. claim of title by reason of three years actual occupation thereunder. Section 2735 applies to sales of lands only that are taxable and- salable, and in which there is some defect in the proceedings relating to the assessment or sale. In such case the owner, knowing his land to be taxable, ought to be on his guard against their loss by any negligence of his own. It applies to lands that are taxable and which should have been assessed, and which were assessed and sold, but the proceedings-relating to the assessment or sale are infected with some infirmity of which the statute is to be the cure. It does not. affect fundamental rights — as a liability to taxation, a question only of constitutional or legislative authority. Could it do so, the subordinate officers of government could defeat the will of the sovereign power and accomplish by indirection what the-laws plainly forbid. .
The learned judge, in Patterson v. Durfey, 68 Miss., 784, places the reason for the statute upon the ground of the “neglect” of the taxpayer, but there is no neglect where there is no power in the authorities to assess the land for taxes. And this is true whether the land is exempt because it belongs to-the federal government or to the state, or to the county or to a
The cases of Patterson v. Durfey, 68 Miss., 779, and Carlisle v. Yoder, 69 Miss., 384, so far as they are in conflict with this decision, are overruled.
Reversed and remanded.