SLUSH et al. v. PATTERSON
Supreme Court of Mississippi
Jan. 13, 1947
Suggestion of Error Overruled Feb. 24, 1947.
28 So. (2d) 738 | 29 So. (2d) 311
No. 36167
The decree below adjudicated that the principal of the debt due and owing by Patterson to McClintock was $4,921.67. The notes evidencing the liability of Patterson obligated him to pay ten percent “. . . upon the amount due.” The chancellor disallowed any claim for attorney‘s fees. This action is the ground for the cross-appeal. The fact that all interest had been forfeited did not relieve the maker of the notes of the obligation to pay attorney‘s fees upon the amount found to be owing. Burt v. Brashears, 118 Miss. 339, 79 So. 182; Jones v. Brewer, 146 Miss. 142, 110 So. 115.
Affirmed on direct appeal; reversed on cross-appeal and remanded for further proceedings in accordance with this opinion.
Sydney Smith, C. J., did not participate in this decision.
L. A. Smith, Sr., J., delivered the opinion of the Court.
Appellants, the wife and daughter, respectively, of Matthew Slush, deceased, were sued under
At the conclusion of the trial, the chancery court rendered a final decree as prayed by appellee, quieting and
The errors assigned here are: (1) The trial court erred in holding that the title to this land passed to the State for the reason that the tax sale was void on its face on account of the total failure of the tax collector to obey the statute governing tax sales; (2) the trial court erred in confirming the tax title of appellee against appellants and canceling their true, legal and equitable title thereto because so doing deprived appellants of the land without due process of law contrary to the Fifth and Fourteenth Amendments of the Constitution of the United States and Section Fourteen of the Constitution of Mississippi; (3) the trial court erred in overruling the demurrer of appellants to the original bill; and (4) the trial court erred in not dismissing appellee‘s original bill.
At the time of his death in 1929, Matthew Slush owned four separate tracts of land in Marion County aggregating 500 acres assessed to him as uncultivable land, and among them was the land forming the subject matter of this litigation. The four tracts are described as follows:
- N1/2 of SW1/4 of NE1/4 and SE1/4 of NE1/4 of Section 6, Township 1 North, Range 17 West, and contains 60 acres.
- N1/2 of SW1/4 and SW1/4 of SW1/4 of Section 6, Township 1 North, Range 17 West, and contains 120 acres.
- SW1/4 of NW1/4 of Section 18 in Township 1 North, Range 17 West, and W1/2 of NE1/4 and SE1/4 of NE1/4 of Section 13 in Township 1 North, Range 18 West, and contains 160 acres.
- SE1/4 of Section 25, Township 2 North, Range 18 West, and contains 160 acres.
The assessment roll reveals the land here involved as assessed on Land Page 61, Roll Line 21 in connection with the N1/2 SW1/4 NE1/4 & SE1/4 NE1/4 all in Section 6, Township 1, Range 17, containing 180 acres, with a valuation of $900. These two tracts are numbered 1 and 2 above. The other lands assessed on the 1930 land roll to Matthew
Appellant contends that the tax collector sold them as a unit contrary to
These four tracts of land, while separated and not contiguous, were all located and consequently assessed in the Hub and Globe Academy Road and School District. The tax collector in anticipation of the payment of the taxes by the property owner, and as a means of facilitating the
The land not having been sold on the date fixed by law, at its May meeting, 1931, the board of supervisors, by an appropriate order, designated June 1, 1931, as the date to sell all of the lands in Marion County on which the taxes had not been paid for 1930, and in the order described the involved lands of Matthew Slush as follows:
| Name of Owner | Description of Land | Sec. | Twp. | Rge. |
|---|---|---|---|---|
| Matthew Slush | N1/2 SW1/4 NE1/4 & N1/2 SW1/4 & SW1/4 SW1/4 | 6 | 1 | 17 |
| SW1/4 NW1/4 | 18 | 1 | 17 | |
| W1/2 NE1/4 & SE1/4 NE1/4 | 13 | 1 | 18 | |
| SE1/4 | 25 | 2 | 18 |
The notice of the tax collector‘s sale of land groups these four tracts under the name of Matthew Slush and puts the values, the county tax, the state tax and the damages all on one line opposite the bottom line on which is listed tract number 4, with a total tax and damages of $138.95, calculated integrally on all four several tracts as if they were a single entity. In other words, the land in Section 6 was not separately valued, nor was the state tax separately stated as to it, nor was the county tax separately stated as to it, nor were the damages separately stated as to it, nor was a total separately stated as to it.
The list of the lands to the State shows the same description and the same situation with reference to the state tax, county tax and the damages, and the total of all three items being calculated on the aggregate of all of the tracts as a unit, instead of breaking them down into separate items, as separate tax, damages and totals on each parcel. There was no oral proof as to mode and procedure at the actual sale, and the issue here to be determined must depend upon the foregoing documents for its solution.
In the opinion on Suggestion of Error in State et al. v. Wilkinson et al., 197 Miss. 628, 629, 20 So. (2d) 193, 836, we said that “When
Appellee contends that the sale to the State was not void for the reason that the four tracts were all uncultivable land assessed at the same uniform value of $5 per acre, and in the same school district, and that the tax collector violated no law in grouping them on one tax receipt. Furthermore that such grouping on the tax receipt did not prevent the tax collector from making a quick and easy calculation on the amount of taxes due on each separate tract; and that no law was violated by the board of supervisors in grouping the four tracts in the order, fixing the date for the sale of land for delinquent taxes; and he points out that it was not necessary for the board to describe the land at all, in the order, citing Bass v. Batson, 171 Miss. 273, 157 So. 530. Appellee further argues that no law was violated by the tax collector in grouping the four tracts in his advertisement of the tax sale, and that the number, 7541, was not a sale but a tax receipt number. And also that the grouping of the four tracts on the tax receipt, in the notice of sale, and in the tax collector‘s list of the sale, is no evidence that the law was violated in the tax sale, under Lewis v. Griffin, 103 Miss. 578, 60 So. 651. There, we said: “It is claimed that the list of lands sold to individuals filed by the tax collector with the clerk of the chancery court shows that the two tracts of land which were separately assessed were grouped together, and that the two separately assessed parcels of land were embodied in the same deed to the purchaser at the sale for delinquent taxes. This,
Appellants’ point, that the tax collector‘s list in this case was not actually signed by him, thereby preventing a prima facie presumption to aid the appellee here, is disposed of adversely to appellant by
However, in Leavenworth v. Claughton, 197 Miss. 606, 19 So. (2d) 815, 20 So. (2d) 821; we said: “. . . The tax collector sold the lands to the State, but in making the sale he sold the lands in Sec. 6 by one sale, No. 217, and the land in Sec. 7 by another, No. 218, as shown on the face of his certified list of sales to the State; so that he made two sales of one contiguous tract owned by the same owner, and the sales having been made under Sec. 3249, Code 1930, as it then stood, they were invalid.” It was argued in that case that: “. . . Inasmuch as the law required the tax collector to make one sale of the one tract, it must be presumed that he acted accordingly, and Jones v. Seward, [196 Miss. 446,] 16 So. (2d) 619, is cited. The presumption raised by the general recital is overcome here, however, by the specific disclosure in the body of his list that he made two sales, No. 217 and No. 218.”
In the case of Love et al. v. Barron, 197 Miss. 231, 20 So. (2d) 97, 841, there are three separately numbered sales of three parcels of one contiguous tract of land. There the sale numbers 4136, 711, and 4210 were the numbers of the tax receipts made up for the separate parcels by the tax collector. Compare with the present situation where the single tax receipt was number 7541 as to this group of widely separated tracts of land. In that case we said in part: “The property was part of a larger tract of contiguous lands which were separately assessed in three parts to Scanlon and Sammes, and the list of such sales certified to the State shows that there were three separate sales thereof to the several portions, such sales being numbered 4136, 711 and 4210 respectively. It was thus sufficiently shown that the applicable statute, Code 1930, Sec. 3249, was not followed and that the sale was void.”
With reference to Hewes v. Seal, supra, the appellee argues that the case is entirely different from the one at bar since it was there admitted that all of the widely
In Leavenworth v. Claughton, supra, we said: “The presumption raised by the general recital is overcome here, however, by the specific disclosure in the body of his list that he made two sales, No. 217 and No. 218.” So here, we think, after very careful consideration of the matter, that while it is not against the law, as contended by appellee, for the tax collector to have done the several things enumerated in appellee‘s argument, to which we
These entries, as made, are evidence of something. Can it be said that they are proof that the several tracts were sold separately? We think not. Every conclusion therefrom supports the converse as true, — that the several tracts were sold en masse, or as a unit. Is it within probabilities that the tax collector at every precedent step clear up to the actual sale dealt with these different tracts as an integrated entity group, or en masse, and then at the sale pursued a wholly different and completely different course, and sold them separately, — when the very list he filed evidences the contrary? We think that step by step the evidence progressively leads to the consistent conclusion, the tax collector ended as he started, and dealt with these lands throughout en masse, initially in the receipt and finally at the sale, and all in between. If, as appellee contends, the tracts of land were sold in the required parcels as required by the statute, in the face of all the foregoing convincing factors to the contrary, it would seem strange, indeed, that after the sale, the tax collector should resume treating the various separate tracts as a single, unified group in his list of lands sold the State. It is there disclosed clearly, we think, his integration of them into an associated whole, on which one calculation of state tax, county tax, damages, and one total thereof, was entered collectively on the entire acreage. The decree of the chancery court was erroneous, and the original bill should have been dismissed, in our opinion.
The notice of sale manifestly advertises a single sale of all tracts, as follows:
| Name and Description | Vol. | S.T. | C.T. | Dam. | Total |
|---|---|---|---|---|---|
| Mathew Slush N1/2 SW1/4 NE1/4 & N1/2 SW1/4 & SW1/4 SW1/4 6-1-17 | |||||
| SW1/4 NW1/4 18-1-17 | |||||
| W1/2 NE1/4 & SE1/4 NE1/4 13-1-18 | |||||
| SE1/4 25-2-18 | 2300 | 18.40 | 101.78 | 18.77 | 138.95 |
The list of these lands sold to the State at the tax sale discloses, as stated, a single sale, we think, and is as follows:
| Name of Owner | Division of Section | Sec. | TWP. | Rge. | Receipt No. | State Tax | County Tax | Damages | Total |
|---|---|---|---|---|---|---|---|---|---|
| 7541 Mathew Slush | N1/2 SW1/4 NE1/4 & N1/2 SW1/4 & SW1/4 SW1/4 | 6 | 1 | 17 | |||||
| SW1/4 NW1/4 | 18 | 1 | 17 | ||||||
| W1/2 NE1/4 & SE1/4 NE1/4 | 13 | 1 | 18 | ||||||
| SE1/4 | 25 | 2 | 18 | 18.40 | 101.78 | 18.77 | 138.95 |
Appellee also argues that a sale en masse of separated tracts of land belonging to the same owner is not in violation of any law of Mississippi, but we feel that on this point all of the statutes and cases cited in the briefs refute the argument advanced to support it. It is ably argued, but we cannot agree with it.
The decree of the chancery court will be and is reversed, and decree entered here for appellant dismissing the original bill.
Reversed and decree here for appellant.
Sydney Smith, C. J., did not participate in this decision.
McGehee, J., delivered a dissenting opinion.
I am of the opinion that this case is the exact converse of the case of State et al. v. Wilkinson et al., 197 Miss. 629, 20 So. (2d) 193, 836, and that the decree of the trial court should therefore, be accordingly affirmed. Moreover, as held in that case, the tax collector is not required to offer land which may compromise a single tract by first
In the case of State et al. v. Wilkinson et al., supra, we held that the fact that the tax collector placed opposite each parcel on his list the amount of taxes, fees and costs, giving the total, did not evidence that he had made five sales in that case instead of one. It seems, however, that the effect of the decision in the instant case is that the fact of his failure to so extend the amount of state and county taxes, fees and costs, and give the total thereof, is proof that he made only one sale instead of three.
Roberds, J., concurs in this dissent.
Griffith, J., delivered the opinion of the court on suggestion of error.
During the period within which this case was submitted, considered and decided one of the six members of the Court was absent because of illness. The decree of the trial court was reversed by the concurrence of three Judges, two dissenting. Appellee raises the point, and presents it in an interesting manner, that a decree or judgment is not lawfully reversed except by the concurrence of a majority of the entire Court, — that three Judges in banc are not empowered to order a reversal.
The amendment to the Constitution of 1890 made in 1916, Sec. 145A, which increased the membership of the Supreme Court to six judges, contained the provision that “any four of whom when convened shall form a quorum.” The commonly recognized definition of a
Acting upon this express authority, our Supreme Court during the entire course of the thirty years since the amendment has always proceeded with the business of the Court when as many as four members are present and participating, and in the same manner as if those present comprised the entire membership of the Court, and because during the thirty years there has never been a time when less than four members were present and participating, we have never within that period made a request upon the Governor to appoint a special judge for the Court. We have considered that the delay and expense incident to special appointments were a material consideration in the incorporation of the quoted language in the amendment, and we have conformed to its purpose.
In the year immediately next following the adoption of the amendment, the case of Brewer v. Browning, 115 Miss. 358, 76 So. 267, L. R. A. 1918F, 1185, Ann. Cas. 1918B, 1013, was decided with five judges participating — one Judge disqualified. The decree of the Chancery Court was reversed by the vote of three Judges, two voting for an affirmance. A case by case search through the eighty volumes of our official reports since that time will disclose that not less than a dozen cases have been disposed of under the same procedure, consistently followed for more than a quarter of a century.
It is too late now to consider that all those cases were decided without constitutional authority, because reversed by the vote of three instead of four Judges, and we hereby expressly bring forward and affirm what was said on the subject by Smith, C. J., in response to the suggestion of error in Dean v. State, 173 Miss. 254, at pages 309 and 310, 160 So. 584, 162 So. 155.
We have re-examined the present case on the merits and are satisfied with what has been done with it.
Suggestion of error overruled.