North v. Culpepper

53 So. 419 | Miss. | 1910

Mayes, O. J.,

delivered the opinion of the court.

In July, 1909, S. C. Culpepper began a suit in the chancery court of Harrison county against C. R. North. The suit had for its object the cancellation of a tax title held by North to the S. W. ¼ of N. W. ¼, section 4, township 2 S., range 12 W. The complainant fully deraigned his title down to- the point where the adverse claim commences, and there is no point made on that. The bill shows that the land in question was assessed in the year 1900 as required by law. The assessment of the. land was as follows, viz.: “Unknown, E. ½ of S. E. ¼ and S. W. ¼ of N. W. Sec. 4, T. 2, R. 12 West, $240.” It is seen from the above assessment that the forty acres in question was jointly assessed with another eighty in the same section, etc., and that the whole was assessed at a uniform value of $2 per acre. It seems from the bill that the E. ½ of the S. E. ¼ belonged to one person, and that the S. W. ¼ of N. W. ¼, containing the forty acres in question, belonged to another. However this may be, the proportionate tax on the eighty-acre tract was paid; that is to say, the party paying on the eighty-acre tract paid two-thirds of the tax assessed on the uniform value of $2 per acre for the whole, leaving the remaining third, assessed upon the forty acres in question, unpaid. Subsequently, and on March 4, 1901, the remaining-forty acres of land was sold for one-third the tax still unpaid. The property was bought in by the state, and on the 17th day of May, 1906, North purchased same from the state and obtained a deed therefor. The bill was demurred to, and overruled by the court, from which jugment North prosecutes this appeal.

Since a valid assessment of all property is the foundation of the validity of all sales, it is well to settle this question at the outset. This land is not contiguous, and it was an irregularity for it to be assessed as one tract of land. The duty of proper assessment is a double duty, resting both upon the property owner and the assessor, and every opportunity is offered the property owner to see that a proper assessment is made, either by giving it in himself, or by making proper corrections after the return of the assessment rolls, as provided by section 4296, Code 1906 (section 3787, Code 1892). This section provides that: “After the return of the assessment rolls they shall remain on file and be subject to objections for at least two weeks after being filed, and until the next regular meeting of the board of supervisors after the expiration of the two weeks,” etc. * * * “A person who is dissatisfied with the assessment may, within such time, present his objections thereto in writing,” etc. * * * “All persons who fail to file objections shall be concluded by the assessment and precluded from questioning its validity after its approval by the board of supervisors, or by operation of law, except minors and persons non compos mentis.” Under this section we held, in the case of Adams v. City of Clarksdale, 95 Miss 88, 48 South. 242, that, “where an assessment roll has been properly approved, the taxpayer is precluded from questioning its validity afterwards, and the effect of the approval is to render a final judgment against the taxpayer, unless subject to be reopened under section 4312.”

But it is claimed by appellee that the act of the tax collector in allowing the owner of the eighty-acre tract of land to pay two-thirds of tbe tax on his land, and then selling the forty acres of land for the remaining one-third, on which the tax at the uniform valuation placed on the whole tract was due and unpaid, was in effect an assessment made by the tax collector and rendered the sale a nullity. The contention is that the whole tax was due on each and every parcel of the whole tract jointly assessed; that the land was not separately assessed, and could not, therefore, be separately sold for its own specific tax. It is contended, for appellee, that the tax collector arbitrarily divided the sum apportioned as a tax against the aggregate value of the whole, and sold a separate parcel for a part of the tax, and the case of House v. Gumble, 78 Hiss. 259, 29 South. 71 is. cited •as conclusive of this contention. Later in the opinion we will discuss the case of House v. Gumble. We desire to first state that in our judgment the facts of this case furnish no warrant for appellee’s contention on this point. There was no arbitrary division of the land and sale by the tax collector for any part of the tax due on the whole. The tax collector sold the only tract on which there was any tax due and unpaid, and he sold it-at the assessed valuation placed on it by the assessor. The •assessor established the unit of value at two dollars per acre on the whole, and in accordance with this standard, fixed by the assessor, the tax collector sold the only part of the tract delinquent for tax. If it be true, as contended by appellee, that these tracts may be of variant values, the assessor has not assessed them in that way, and the fact that they were of different values could not affect the validity of a sale made under an assessment fixing them at the same value. It is the duty of the assessor to fix values, and if different adjacent tracts, or joint assessment of land, include lands of different values, the assessor should specify it; but, if he does not, this does not avoid the assessment. We have not found any case that holds that where two or more owners of land, inadvertently or otherwise, have, their land jointly assessed, one of the owners may not pay the tax on his land in proportion to the assessment, and have it liberated from the delinquent list, leaving the other tracts.to be sold for that proportion of the tax which is due and unpaid upon it. The very authority of the tax collector to sell depends upon the fact that a tax is due and unpaid, and he can only sell such land as has failed to pay its tax. There is no reason for holding contrary to this. The delinquent taxpayer is-neither helped nor hindered by allowing the owner of a joint assessment to pay the tax on his own property, leaving the unpaid tract to be sold for its tax; but the public at large are much benefited by this holding, by leaving .each person the power, to protect his own without being complicated with some other indifferent and negligent owner, and perhaps being compelled to sue such other owner to recover back the tax which has been paid on such other’s land. In the case of Moores v. Thomas, 95 Miss. 644, 48 South. 1025, we expressly held that one owner, under a joint assessment, might pay on his own land without being compelled to pay on the whole tract.

The case of House v. Gumble, 78 Miss. 259, 29 South. 71, supra, is a very different case from the one under consideration, and offers no obstacle to this view. In the case of House v. Gumble, the lots of J. R. Holcombe were jointly assessed as the “W. ½ of Tot 8, and W. ¼ of hot 9, Block 4,” at an aggregate valuation, or lump sum. It does not appear that any' person had paid the proportionate tax on either of the lots at the date of sale; but it does appear that the whole of the tax on both lots, jointly assessed, was delinquent at the time of sale. Instead of offering one of the lots for sale, as is required by section 4329, Code 1906 (section 3814, Code 1892), and making an effort to have the one lot bring a sufficient amount to discharge the tax on both, thus saving to the owner a part of his property, the tax collector, in direct violation of section 3814, Code 1892 (section 4329, Code 1906), arbitrarily apportioned the tax on both lots and made a separate sale of each.. This action of the assessor necessarily resulted in a sale of both lots, the very thing the law seeks to avoid. But a very different case would have been made, had it appeared that these lots were owned by different persons, and one owner had paid his pro rata of the entire tax, and the remaining lot was alone delinquent, and sold for its own tax, andThe only unpaid tax; and it would have been the same, of course, if the lots were owned by the same person, and one-half of the tax had been paid on one lot, and that lot released. We have no concern in this decision as to what equities might arise as between owners of different tracts of land, jointly assessed, when it might happen that the land of one owner was sold’ in complete discharge of the tax on the whole tract. The question in this case is simply as to the validity of this tax title.

There was no error committed by the tax collector in conducting the sale; but, if there had been, section 3813, Code 1892 (section 4328, Code 1906), prevents the error from invalidating* the sale, if the property was sold at the proper time and place and the taxes were due and unpaid. That all of these things existed is not even disputed. When there has been a valid assessment and sale thereunder for taxes, section 3817, Code 1892 (section 4332, Code 1906), declares for what reasons it may be avoided. The above section provides that, when a conveyance has been made by a tax collector, “no such conveyance shall be invalidated in any court except by proof that the land was not liable to sale for the taxes, or that the taxes for which the land was sold had been paid before sale, or that the sale had been made at the wrong time or place; and, if any part of the taxes for which the land was sold was illegal or not chargeable on it, but part was chargeable, that shall not affect the sale nor invalidate the conveyance, unless it appear that before sale the amount legally chargeable on the land was paid or tendered to the tax collector.” It is needless for us to say that this statute contemplates, of course, that all the prerequisites leading up to the sale have been conducted in a way to render them valid under the law. .

Counsel for appellee cite the cases of Speed v. McKnight, 76 Miss. 723, 25 South. 872, and Howell v. Shannon, 80 Miss. 598, 31 South. 965, 92 Am. St. Rep. 609; but neither of these cases has any bearing on this case. We will undertake to point out the reason. In order to understand the case of Speed v. McKnight, supra, it is necessary to consider the case in the light of the case of Corburn v. Crittenden, 62 Miss. 125, to which it refers, and from which it is distinguished. In Gorbum v. Crittenden lots 9, 10, and 11, in the town of Greenville, .and owned by different persons, were jointly assessed at one valuation and sold for delinquent tax on all, and the court held that “the objection that three lots (9, 10, and 11) were sold •together for one single tax and costs is without force, in view of the fact that they may have been, and presumably were, assessed together for a single sum as one tract.” In the case of Speed v. McKnight, 76 Miss. 723, 25 South. 872, supra, it was shown that lots Nos. 125 to 162, inclusive, were jointly assessed at the aggregate value of $800. These lots became delinquent for the taxes. Before the sale persons claiming 8 of the lots paid the taxes on them, and they were released by the tax collector, who, as the facts of the case show, “changed the assessment,” and then sold all the lots save those paid on. .Under these circumstances the court held that “the assessment under which this property was sold, and the sale, was utterly void. The case of Corburn v. Crittenden, 62 Miss. 125, is wholly unlike this case in its facts. The assessment here was the act of the tax collector and the lots were physically widely separated and of different values, as shown by proof, and should not have been sold as one tract.”

In the case of Corburn v. Crittenden, 62 Miss. 125, the question was whether lots of different owners could be jointly assessed at an aggregate value and sold for taxes as one tract, and the court held that they could. There was no' suggestion in the above case that the tax collector had changed the assessment in any way. In the case of Speed v. McKnight the assessment was declared void because made by the tax collector. These two cases turned on different questions. The case of Speed v. McKnight did not hold that a number of lots could not be included in one assessment at an aggregate value, nor did it hold that the owner of one or more of the lots might not have paid on the particular lot owned by him and have it released from the sale without vitiating the sale of the others, if the lots were assessed jointly and at an aggregate and uniform value. If the ease did not hold as stated, it was to. that extent wrong, and is to that extent overruled. The case of Howell v. Shannon, 80 Miss. 598, 31 South. 965, 92 Am. St. Rep. 609, simply held, in substance, that when a body of land containing several legal subdivision, owned in severalty by more than one person, is assessed to “Unknown” as one entire tract, and sold for delinquent tax as a whole, and purchased by one of the owners, such purchaser cannot assert the title thus acquired by him against the owners of the other parts of the land. The land was assessed as an entirety. It'was sold as an entirety, and, when one of the owners purchased the property at tax sale, his purchase operated for the benefit of all, since such purchase was but paying that which was a legal charge on all.

But none of these cases hold that any one of the owners could not have paid on any particular tract of the land and had same released. Such action would have been valid, and the tax collector would in no sense be said to have changed the assessment; that is to say, to have imposed more or less tax on any person’s land. In such case the tax collector is merely receiving taxes on the value of the land as fixed by the assessor. He does not change the assessment. He releases lands on which there is no tax due, and sells the land on which the tax is due.' He only does what an injunction would compel him to do, and but pursues the only authority he has to act.

It is our view that the demurrer should have been sustained, and the bill dismissed. So ordered.

Reversed.