House v. Gumble & Co.

78 Miss. 259 | Miss. | 1900

Terral, J.,

delivered the opinion of the court.

Gumble & Co. filed their bill in the chancery court of Washington county to cancel two tax deeds made to L. R. Crouch by the tax collector on the fifth day of March, 1897, of the west half of lots 8 and 9, of block é, first addition of the town of Areola, in said Washington county, Mississippi. On the first Monday of March, 1897, the tax collector of Washington county sold, for the taxes of 1896, the west half of lot 8, and the wrest half of lot 9, of block i, of the first addition of the town of Areola, in Washington county. The said two halves of said lots were sold separately to L. R. Crouch, and were separately conveyed to her, and, soon after the two years allowed for redemption passed, Mrs. Crouch sold and conveyed her tax title to said lots to the defendant, J. B. House. The said two parcels of land, at the time of their assessment, were the property of Lelia E'. Holcomb, but were assessed to J. R. Holcomb. Gumble & Co. allege and show, as constituting their claim to the relief sought by them, a trust deed executed by Mi'S. Holcomb, on the ninth day of April, 1896, conveying the property in controversy to Henry E. Gumble, as trustee, to secure to them an indebtedness of something more than $1,000; a sale under said deed of trust on the fourteenth day of February, 1898, and a purchase by them of said property; and also the execution, on the nineteenth day of February, 1898, of a deed to said property to them by said trustee. It appears from the record that Lelia E. Holcomb, on the fourteenth day of February, 1898, filed in the chancery court of Washington county her bill of complaint against Gumble & Co., the beneficiaries in the deed of trust above alluded to, and against Henry E. Gumble, the trustee therein, alleging a payment oi other discharge from said alleged indebtedness to them, and praying relief therefrom, and with said bill she filed the fiat of Chancellor Pintard for an injunction against the sale of said property under said deed of trust. The injunction writ was placed in the hands of the sheriff of Washington county on the fourteenth of February, 1898, the day of sale, but he returned the same on that day to the chancery clerk’s office not executed, because received too late, Areola, the place of sale, being too distant to be reached by him before the hours of sale should be ended. It does not appear that the fiat for the injunction came to the knowledge or notice of Gumble & Co. or of their trustee until some time after the sale and conveyance of the property by the trustee to them. The fourteenth paragraph of the bill of complaint, among other things not necessary to be recited, alleges: “That the west half of lot 8 and the west half of lot 9, of block 4, of the first addition of Areola, are two entire and distinct assessments, Tout that both of said lots are assessed to J. R. Holcomb, all of which will fully appear by reference to so much of the land assessment roll of Washington county, Mississippi, made in the year 1896, as affects the west half of said lot 8 and the west half of lot 9, in block 4, of the first addition to the town of Areola, a plat of which said block, and a copy of as much of said assessment roll as affects said lots, are herewith filed and made a part of this bill as exhibits G and H. . . . That said tax collector (J. B. Hebron) offered said lots separately, to wit: First, the west half of lot 8, in block 4, which was sold to L. R. Crouch for taxes due thereon, as shown by exhibit D, and the west half of lot 9, in block 4, was separately offered, and purchased by L. R. Crouch, as shown by exhibit D.” Exhibit D is a copy of the two deeds of the tax collector to these two parts of said lots 8 and 9, separately sold and conveyed for the recited consideration in each deed of $13.

Exhibit “G,” being a copy of the real assessment roll of said Washington county, as far as it pertains to the property in controversy, is as follows:

And to this is attached the affidavit of the assessor and the certificate of the chancery clerk of said Washington county. The chancery court canceled the tax deeds, and House appeals.

1. The contention of the appellant is that his tax title is good; that if bad Gumble & Co., for want of interest, have no right to attack it. It is clear, however, that the sale of the property by trustee, and the execution of the deed thereunder, passed title in form at least to Gumble & Co., which is pt'ima facie good, and will inure to their protection until it be divested out of them by some appropriate proceeding, and until so divested, the title, legal and equitable, will be taken to be in appellees. J. B. House is not a party to the in] unction suit of Mrs. Holcomb, and he cannot complain of a violation of the injunction, if such violation had occurred. Cocks v. Simmons, 57 Miss., 183, 203.

2. Our statute (code, § 528) reads: ‘■‘■Exhibits made jmH of bill. — Exhibits filed with a bill, as part of it, shall be considered on demurrer as if copied in the bill. ’ ’ And, while paragraph 14 of the bill expressly affirms that the assessment of the west halves of lots 8 and 9, block 4, first addition of Areola, are separately assessed upon the assessment rolls of Washington county, it also sets out a copy of the assessment roll relating to said lots, duly certified, as exhibit G to the bill of complaint. We have, then, before us an exhibit, made a part of the bill of complaint by our statute, which shows a joint assessment of the west halves of lots 8 and 9, block 4, first addition of Areola, with an accompanying averment in the body of the bill that the asséssment of these two parts of lots 8 and 9 were'separately assessed; or, in other words, there is a clear contradiction between the exhibit and the allegation relating to it. It must be admitted that, before the adoption of § 528 of the code, good pleading required all material averments of fact to be stated in the bill and did not permit them to be brought into the case through an exhibit, but § 528 is a clear exercise of legislative power, and it is the duty of the courts to give to it its full force and effect.

By virtue of the statute exhibit G became a part of the bill of complaint; and the averment relating to it could not qualify its nature and character. The exhibit, being a part of the bill, was before the court for its opinion- and judgment, and any characterization of it by the pleader could not alter its essential nature. And where an exhibit, made a part of the bill by the statute, is contradicted by some averment of the bill, the fact will be taken to be in conformity with the .exhibit. The exhibit, especially when it is a copy of a record, is to be taken as true, rather than a contradictory averment in the pleading relating to the samefact. Williamson v. White, 101 Ga., 276, 279, s.c. 28 S. E., 846; Deposit Go. v. Lackey, 149 Ind., 10, 14, s.c. 48 N. E., 254; Freiberg v. Magale, 70 Tex., 116, 7 S. W., s.c. 684. We have, then, a joint assessment of the west half of lot 8 and of the west half of lot 9 at one valuation for the whole of said west half of said lots, but a separate sale of the west half of lot 8 and the west half of lot 9 by the tax collector. It seems to us that this tax sale was void. Section 814 would have authorized the tax collector to have sold either half of these lots, or any smaller part thereof, if it should have brought the whole tax to be collected; but if a part of land jointly assessed does not bring the whole tax, the entire lot, or parts of lots, jointly assessed should be sold together; for where several parcels of land are assessed as an entirety at one sum, and a part of the tract, when offered for sale, will not bring the tax assessed on the property, then the entire tract must be sold together, and it is not competent for the tax collector to apportion the tax to separate parts of the tract, and to sell the several parts of the tract separately, and if he do so his action is illegal, and the sale is void. In O'Neill v. Tyler, 3 N D., 47, 53 N. W., 434, where two lots in a town were listed at one lump sum, but each lot was separately sold, the court said: “It is well settled that where distinct parcels of real estate are properly grouped as an entirety for valuation, and one tax is laid against the total value, the tax sale, if made, must correspond to the previous grouping and valuation of the„ property. No tax collector possesses the legal authority to arbitrarily divide the sum apportioned as a tax against such aggregate valuation, and sell a separate parcel for the whole tax or any part of the tax. There being no tax against cither lot as a separate parcel, there could lawfully be no separate tax sale of either lot. ’ ’ This rule is supported by the following authorities: Cooley, Tax., 493, 494; Desty, Tax., 871, and notes; Black, Tax Titles, sec. 123. The tax titles of Mrs. Crouch held by House were invalid, and the decree of the court annulling the same is approved.

Affirmed.