Smythe v. Whitehead, No. 23449

No. 23449 | Miss. | Oct 15, 1923

Ethridge, J.,

delivered the opinion of the court.

The appellants filed their bill in the chancery court to confirm a tax title to the West half of the Southeast quarter, section 14, township 12, range 5, alleging that in accordance Avith the provision of the law pertaining thereto the tax collector executed a deed to the said purchasers conveying said lands to the complainants, and made his report as required by law. That more' than two years have elapsed since the date of the tax sale to the complainants, and that the lands have' not been redeemed by the original owher or the defendants or any one else in their behalf, and the tax collector’s deed has been duly and legally delivered to the purchasers, and a copy is attached as exhibit to the bill. That all of the requirements in regard to the assessment of the land for taxation for the year 1915 were legally complied with, and that said land was legally assessed for said year. That said lands were assessed to “Unknown” for said year, who defaulted in the payment of the taxes thereon when the same were duly advertised and sold. That after diligent inquiry so far as the complainants know or can ascertain Mrs. M. A. Whitehead and -- are the only persons interested in or claiming any interest in the said land, and prays for a confirmation of said title.

The bill ivas demurred to, and the demurrer overruled The appellee, Mrs. Whitehead, answered the bill, and denied that the complainants were legal and equitable owners of said land, but admits that the same was sold on the 3d day of April, 1916, and that the complainants purchased thereat; denies that the provision of law pertaining to assessment and collection of taxes were complied with, but admits that more than two years have elapsed since the said pretended sale, and said lands have not been redeemed by the original owner, which is the defendant, or any one else in her behalf; and alleges that the assessment roll of Attala coufity for the year 1915 was absolutely void because the assessor of the county failed to make return of said assessment to the board of supervisors of said county on or before the first Monday of July, 1915, as required by law; and alleges that no order of the board was legally passed and entered at the July term, 1915, extending the time for the completion of said rolls as provided in section 4293, Cede of 1906.

She avers that the board of supervisors at the August term, 1915, entered a pretended order nunc fro tunc, wherein it was recited that at the July term, 1915, that tiie said board rendered an order extending the time to the assessor to complete the rolls during the August term, 1915, but alleges that the board had no power to enter a nunc pro tunc order at the August meeting, and that the older is void, and that any effort to extend the time beyond the first Monday in August was ultra vires and void. She further charged that-, instead of filing the roll on the first Monday of August, the tax assessor filed the roll on the 7th day of August, 1915, out of time and contrary to the provision of the statute. She further alleged that the assessor failed and neglected to give the notice required by section 4303, Code of 1906 (section 6937, Hemingway’s Code), although there was a weekly newspaper published in the county, but that a notice was published by the clerk of the board of supervisors under section 4295, Code of 1906, and publication of the notice by the clerk'ivas unwarranted and contrary to section 4303, Code of 1906, above mentioned. She further alleged that the notice published by the clerk was insufficient, because only published on August 13, 20, and 27, 1.915, and not for the space of three weeks as required by the statute.

It appears from the record that the tax assessor did not file his roll on the first Monday of July, 1915, and that no order was entered at that meeting extending the time until the first Monday of August as required by statute. But that the assessment roll was not ready to be filed on the first Monday of July, and at the August meeting of the board an order nunc pro tunc was entered, reciting that on the application of the tax assessor asking for further time in which to complete and file the assessment rolls for 1915 and showing the board that he can complete and file the same by the next term of this board, and the board having considered the same, and believing that he is capable, does hereby order that the said tax assessor be and is hereby given until the August term of this board tó complete and file his roll as provided in section 4293, of the Mississippi Code of 1906. It further appeared that the roll was actually filed on the 7th day of August, 1915, and that the first Monday of August was the 2d day of August.

On the 13th day of August there was published in the Kosciusko Herald, a newspaper published in the said county, a notice reading as follows:

“The personal and real assessment rolls of Attala county for the year 1915 are on file in this office. All persons desiring to do so may inspect same by the first Monday in September, 1915, and file their objections thereto, if any, with the undersigned clerk.

“J. H. Oliver, Clerk of the Board of Supervisors.”

At the September meeting of the board, the board approved the roll so filed by an order properly entered, etc.

The chancellor held that under the decisions of this court á failure of the assessor to complete and file the roll within the time allowed by law renders the assessment void, and a sale thereunder void, citing and relying on Brothers v. Beck, 75 Miss. 482" court="Miss." date_filed="1897-12-15" href="https://app.midpage.ai/document/brothers-v-beck-7988089?utm_source=webapp" opinion_id="7988089">75 Miss. 482, 22 So. 944; Bennett v. Maxwell, 82 Miss. 70" court="Miss." date_filed="1903-03-15" href="https://app.midpage.ai/document/bennett-v-maxwell-7988927?utm_source=webapp" opinion_id="7988927">82 Miss. 70, 34 So. 226; McGuire v. Union Inc. Co. 76 Miss. 868" court="Miss." date_filed="1899-03-15" href="https://app.midpage.ai/document/mcguire-v-union-investment-co-7988278?utm_source=webapp" opinion_id="7988278">76 Miss. 868, 25 So. 367; Seals v. Perkins, 96 Miss. 704" court="Miss." date_filed="1910-03-15" href="https://app.midpage.ai/document/seals-v-perkins-7990603?utm_source=webapp" opinion_id="7990603">96 Miss. 704, 51 So. 806, 52 So. 584" court="Miss." date_filed="1910-03-15" href="https://app.midpage.ai/document/boone-v-mendenhall-lumber-co-7990701?utm_source=webapp" opinion_id="7990701">52 So. 584; Millins v. Shaw, 77 Miss. 900" court="Miss." date_filed="1900-03-15" href="https://app.midpage.ai/document/mullins-v-shaw-7988425?utm_source=webapp" opinion_id="7988425">77 Miss. 900, 27 So. 602, 28 So. 958; and that the notice to the taxpayers signed by the clerk instead of the assessor was not the legal notice required. by section 4303, Code of 1906 (section 6937, Hemingway’s Code); relying on Cameron v. Whittington & McGhee, 120 Miss. 595" court="Miss." date_filed="1919-03-15" href="https://app.midpage.ai/document/cameron-v-whittington-7993482?utm_source=webapp" opinion_id="7993482">120 Miss. 595, 82 So. 311; and entered, a decree dismissing the bill and canceling the tax deed. From which decree this appeal is prosecuted.

It is the contention of the appellants that the final approval of the roll by the board validated the assessment, and that the notice given by the clerk is a substantial compliance with section 4303, Code of 1906 (section 6937, Hemingway’s Code).

While it is contended by the appellees that the board could not enter the order nunc pro tunc at the August meeting, and that the entry thereof did not relate back to the proper entry to be made in July, and that the roll, mot having been filed on the first Monday of August, but only on the 7th day of August, was not a legal assessment roll, and also that the notice given by the clerk is not the notice required by law, and such notice can only be given by the officer required by statute to give it. The ap-pellee also contends that the proceeding to confirm the tax title was void, and could not be entertained, because the land was assessed to “Unknown” owner, and no publication or process was published to the unknown claimants, as required by section 548, Code of 1906 (section 305, Hemingway’s Code). In our opinion the notice required by section 4303, Code of 1906 (section 6937, Hemingway’s Code), being in lieu of personal summons, falls within the case of Cameron v. Whittington & McGhee, 120 Miss. 595, 82 So. 311, and failure to publish the notice as therein required invalidates the assessment.

It is not necessary to decide what effect the failure to publish the notice under section 548, Code of 1906 (section 305, Hemingway’s Code), would have -upon the decree had the Chancellor confirmed the title instead of dismissing the bill. It follows from what Ave have said that the decree will be affirmed.

Affirmed.