Howell v. Shannon

80 Miss. 598 | Miss. | 1902

Terral, J.,

delivered the opinion of the court:

The matters of controversy in this suit were determined in the chancery court of Jackson county. The bill of complaint was filed by S. H. Shannon against William -Howell, in which Shannon claimed to be the owner of all. of section 34, township 5 S., range 6'W., in Jackson county, lying north of a line commencing 24 chains and 38 links north of the southeast corner of said section, and running thence west 40 chains to Kirkwood lake, thence following the center of said lake in a southerly course until it crosses the west line of said section 34, and seeking to cancel, as a cloud upon his title thereto, a tax title held by William Howell. The bill further alleged that Shannon, in March, 1901, sometime before and since said time, was operating a turpentine orchard upon said land as a means of livelihood and source'of profit, having as many as 7,000 boxes thereon, and that Howell, in willful disregard of the right and possession of said Shannon, entered upon said land and cut and removed therefrom 57 trees, for which he demanded the statutory penalty of $15 per tree. Said bill of complaint further alleged that said William Howell had willfully, without cause or excuse, caused some of his turpentine boxes to be filled with dirt, others to be set on fire and burned, drove nails in the trees where the next streak should have been made, and thereby caused the hacks used by his workmen in chipping said trees to be broken, and had willfully interfered with his hands in the operation of said turpentine orchard, and had intimidated them from working therein by threats of prosecuting them for trespass; and by these means had greatly damaged his business, as he alleged, in the additional sum of $700; for all which sums he demanded a personal recovery. The defendant, William Howell, made his answer a cross-bill, and, claiming title to the land in controversy to be in him, he alleged that Shannon had willfully trespassed upon it, had cut turpentine boxes into a great many of his trees, to his great injury and damage, for which he demanded punitive damages in the sum of $1,250. The chancellor canceled Howell’s tax title, and gave a decree for complainant for $855 punitory damages for cutting and removing the 57 trees, and $250 punitive damages for the other trespasses above recited, less the taxes paid by Howell on Shannon’s part of said land, aggregating $1,095.94; and from that decree Howell appeals.

But two questions arise upon the record: (1) The validity of the tax title of William Howell; (2) the imposition upon Howell of punitory damages. According to the record the assessment of section 34, township 5 S., range 6 W., at the time of the sale, stood as follows: “A. A. Vaughn, 20 a. in S. E. quarter of Allen Goodwin claim, 34, 5, 6; William Howell. 34 a. in S. E. quarter of Allen Goodwin claim, 34, 5, 6 : unknown all except Allen Goodwin claim 580 a. 34, 5, 6.” In fact, in 1896, when the assessment of this land was made, Daniel Mclnnis, of whom Shannon subsequently purchased, owned all of said section 34 lying north of the line described in the beginning of this opinion, being about 480 acres, and William Howell owned all of the S. W. quarter of said section 34 south of • said line, and 34 acres in the S. E. quarter of said section 34 immediately south of and next to said divisional line above described, being about 100 acres. Howell and Mclnnis each made attempt to pay the taxes upon his respective portion of said land, with the result, however, that Mclnnis failed to pay the taxes on any portion of his land in said section, and Howell paid only on his land in the southeast quarter of said section. In March, 1899, the land in controversy, assessed as above stated, was sold to said William, Howell for $10. We have, therefore, a case where a tract of land, 580 acres in quantity, containing several legal subdivisions, owned in severalty by two persons, but assessed to unknown owner as a single and entire tract, is sold in solido at a tax sale and purchased by one of said owners, who claims the fee in the entire tract by reason of said purchase. We think the tax sale void. It is the duty of every owner of land to list it by description and value to the assessor for assessment, and if either of the owners in this instance had listed this parcel of land as being owned by him, and had suffered it to be sold at tax sale, and had bought it in, he would not have acquired a title by such purchase. Ragsdale v. Railroad Co., 67 Miss., 106 (s. c., 6 So., 630). And where the owner fails to render his assessment, the assessor performs that office for him, and the assessment by the assessor stands upon the same footing as that made by the owner; and where the land is assessed as an entirety at one lump sum, the tax‘cannot be apportioned to the several parcels; nor can an owner of a part of the land so assessed take a benefit or advantage under a purchase' at tax sale that he could not take if it had been listed by himself for taxation. It was plainly the duty of the tax collector to offer for sale 10 acres of said section 31, and to have added a similar subdivision, etc., until the necessary tax was produced; and whether the first, second, third parcel, or the whole tract, be sold, the owner of a part of said land cannot make a valid purchase of it, because a part of the tax of the whole tract, and of each and every parcel of it, is legally due from him, and in making the attempted purchase he is but paying his own debt. It is by his neglect of duty that his land is assessed with the land of another person as an entirety, and he cannot gain an advantage at a sale thereof under such circumstances. The relation of Howell to the assessment did not permit him to acquire a title to Mclnnis’ part of the land, but at most gave him a right to subject the land of Mclnnis to the payment of its proportionate part of the taxes assessed to the whole tract. House v. Gumble, 78 Miss., 259; s.c., 29 So., 71; Cone v. Wood, 108 Ia., 260, s.c., 79 N. W., 86; s.c., 75 Am. St. R., 223; Black, Tax Titles, sec. 261.

2. The question of good faith of Howell, or' of willful wrong by him in trespassing upon the lands of Shannon was fairly submitted to the chancellor, and his finding is supported by evidence of such determined purpose on the part of Howell to enforce his claim, whether good or bad, and at any hazard, that no other finding could have been expected or justified.

Affirmed.