Seals v. Perkins, 51 So. 806

51 So. 806 | Miss. | 1910

Lead Opinion

Whiteield, O. J.,

delivered tbe opinion of tbe court.

A very careful and protracted examination of tbis record, which has been under consideration for many months, and twice orally 'argued, has thoroughly satisfied us of tbe soundness of appellee’s title, unless it bas been divested by tbe tax sales under which tbe appellant claims. Tbe appellant sets up three claims:

First. Tbat she bas tbe title by virtuq of an alleged sale to tbe state on July 2, 1894. Tbis sale was absolutely void, because, first, tbe assessment was a nullity. The two order's of tbe board of supervisors relating to this roll show tbat the roll was completed by tbe assessor and delivered to tbe clerk of the board on tbe 5th of September, 1892, and approved on tbe 8th of September, 1892. This assessment Was utterly void. McGuire v. Union Co., 76 Miss. 868, 25 South. 367; Brothers v. Beck, 75 Miss. 482, 22 South. 944; Bennett v. Maxwell, 82 Miss. 70, 34 South. 226. Tbe contention of tbe appellant that the five cent acreage levee tax on this land was due when tbe land was sold on July 2, 1894, and was not paid or tendered to the collector before the sale, and tbat therefore tbe sale was validated, under section 3817, Code 1892, is unavailing. Tbe sale was made at a time not authorized by law. McLemore v. Anderson, 92 Miss. 42, 43 South. 878, 47 South. 801; Kennedy v. Sanders, 90 Miss. 524, 43 South. 913; Mayer v. Peebles, 58 Miss. 628. As stated this sale was also void because the'assessment was a nullity. Since the sale was fundapientally and utterly void, for want of power to sell, section 3817, Code 1892, does not validate it by reason of failure to pay the five cent acreage levee tax. Davis v. Vanarsdale, 59 Miss. 367; Nelson v. Abernathy, 74 Miss. 165, 21 South. 150; Virden v. Bowers, 55 Miss. 1.

' The contention that the tax sale of July 2, 1894, was validated by this section 3817, Code 1892, because the five cent levee tax was due and not paid or tendered, is unsound for the further reason that that contention assumes that the alleged sale of the land for the acreage levee tax on July 2, 1894, had nothing to do with the void assessment roll of 1892, because the land was assessed for this tax by the act of March 30, 1892. This assumption is not warranted. The constitution of 1890 (section 236) required the legislature to levy this specific acreage levee tax, and required that it should be assessed on the same assessment roll as the ad valorem taxes for levee purposes, and that it should be paid at the same time with the latter, and to effectuate this constitutional provision the legislature passed the act of March 30, 1892 (Laws 1892, p. 51). This act levied an annual acreage levee tax of five cents on every acre of land in the Mississippi Delta district. It also levied an annual uniform ad valorem levee tax of five mills on the assessed value of all property, real and personal, in said levee district, “as the same shall appear upon the assessment rolls;”' that is, the regular assessment rolls of the counties in the district. The act required the acreage and ad valorem levee taxes levied by it “to be collected in the same manner and at the same time as state and county taxes,” and also required lands delinquent for such acreage and ad valorem taxes “to be sold in tbe same manner and at tbe same time and under tbe same terms and conditions as lands delinquent for state and county taxes,” and also required tbe auditor, “upon tbe redemption or purchase of said lands' from bim, to collect said levee taxes and all tbat may bave accrued tbereon, with interest and damages ■as upon state damages.” These provisions make it manifest tbat tbe acreage levee taxes were to be assessed on tbe regular land rolls, and, construing tbe constitutional provision and tbe provisions of tbe act together, it is manifest tbat tbe assumption above referred to is unwarranted. Mullins v. Shaw, 77 Miss. 900, 27 South. 602, 28 South. 958. Tbe first claim of appellant is therefore unsound.

Appellant’s second claim is rested upon a sale for taxes -on and after March 18, 1876, for tbe taxes of tbe year 1875. There is nothing in tbe copied list of land sold on and after March 13, 1876, to show who tbe grantee in tbe list was. This list must be perfect as a conveyance, under tbe law in force at tbat time (section 1698, Rev. Code 1871). Bennett v. Chaffe, 69 Miss. 279, 13 South. 731; Bank v. Railway Co., 72 Miss. 447, 17 South. 7. Again, this recorded list, as shown by both •of tbe copies in the record, not only fails to show any sale of tax land to tbe state as tbe grantee, but it also shows tbat tbe alleged sale was not made at tbe time prescribed by law. For this reason this claim is unsound. None of tbe statutes of limitation invoked, as we bave repeatedly held, can bave any effect to cure a sale fundamentally and absolutely void for want of power to sell.

Tbe third claim of tbe appellant is that she got a valid title through a tax sale of tbe land in question on April 15, 1867, to tbe ten cent levee board. She claims tbat this title passed to tbe state under this sale under tbe act of April 11, 1876, and then passed to her under a tax patent from tbe state to her •July 30, 1900. But this sale was absolutely void, because it was made on the wrong day; and, furthermore, whatever title, if any, passed by the alleged tas sale, also passed prior to thetas: patent to appellee of July 30, 1900, to those under whom the appellee claims, by the deed to them for the land executed on May 30, 1900, by the ten cent levee board under its new name-of the “Board, of Mississippi Levee Commissioners,” and its. treasurer, from which it necessarily followed that on July 30,, 1900, the date of the patent to the appellant, the state had. already been divested of its title, and did not then own this-land, and had no power at that time to convey to the appellant, by the tax patent any title which may have passed to the ten. cent levee board under the alleged tax sale. This tax deed shows on its face that the alleged tax sale was made on April 15,. 1867. The law required the sale to be made on the second Monday of April, 1867- — the 8th day of April. The deed does not show that the sale was made on the 15th of April in pursuance-of a tax sale begun on the 8th of April, and continued or adjourned from day to day until the 15th of April, as required by law. There was no evidence of any kind to this effect. McLemore v. Anderson, 92 Miss. 42, 43 South. 878, 47 South. 801; Kennedy v. Sanders, 90 Miss. 524, 43 South. 913, and authorities cited therein.

Great reliance is placed by the appellant on the case of Railway Co. v. Buford, 73 Miss. 494, 19 South. 584; it being insisted that that case is on all fours with this case, and decisive of the validity of the appellant’s title. This is a complete misconception of the scope and effect of that case. In that case-both the complainant and defendant claimed title under ;the sale to the ten cent levee board, and as neither cared to show that that sale was made, as in fact it was, on the wrong date, both parties to the litigation assumed the title to- be valid in so far as the-day was concerned, and made their contentions upon wholly different grounds. The validity of the sale to the ten cent levee; board was questioned in that case by either party, since both were equally afraid of the fact that it was made on the wrong day, and both claimed from the same worthless source of title. In other words, neither party in that litigation once referred to the fact that the sale was made on the wrong day. The validity of that sale was not brought in question, but, on the contrary,, was agreed to by both parties, and both traced title from that sale. This being so, the validity of that sale was not presented to the court at all and, of course, was not considered or decided by the court, with reference to the point here made that it was. void, because of having been made on the wrong day. None of the statutes of limitation invoked are of any avail, as before stated. See the two cases as hereinbefore referred to, and also Eastland v. Lumber Company, 90 Miss. 330, 43 South. 956. It also appears that for eighteen days of the time for redemption this deed was not filed with the clerk, as required by law. There was, therefore, lacking from the period of redemption the space of eighteen days during which it should have remained on file with the clerk for redemption. This also made the sale void. Bank v. Railway Co., 72 Miss. 447, 17 South. 7; Adams v. Mills, 71 Miss. 150, 14 South. 462; Eastland v. Lumber Co., 90 Miss. 330, 43 South. 956; Day v. Smith, 87 Miss. 395, 39 South. 526. No question as to the filing of the tax deed to the ten cent levee board was involved in Railway Co. v. Buford, 73 Miss. 494, 19 South. 584. No question of that sort was made, discussed, or decided in that case. The sale was not attacked on that ground, or on any other ground; both parties to the litigation tracing to it, and assuming the sale to be valid. The third claim of title on the part of complainant is therefore absolutely unsound.

A great many other answers to the objections made by the learned counsel for appellant are stressed by the learned counsel for appellee. Preferring to decide nothing but the matters expressly herein determined, and upon tbe grounds only wbicb are named, we rest the cause here.

The result is that the decree of the court below is affirmed.

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Concurrence Opinion

Mates, J., and Smith, J.,

united in the following specially ■concurring opinion.

We concur in the result reached in this ease, but do not concur in the reasons given therefor in the opinion of the chief justice.