Bank of Commerce & Trust Co. v. UNION CENTRAL L. INS. CO.

Decision Date21 January 1938
Docket NumberNo. 8604.,8604.
Citation94 F.2d 422
PartiesBANK OF COMMERCE & TRUST CO. OF MEMPHIS, TENN., v. UNION CENTRAL LIFE INS. CO. et al.
CourtU.S. Court of Appeals — Fifth Circuit

Julian C. Wilson, of Memphis, Tenn., for appellant.

Gerald FitzGerald, of Clarksdale, Miss., for appellees.

Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.

HUTCHESON, Circuit Judge.

The suit was for a declaratory judgment that plaintiffs' lands were not subject to, and an injunction relieving them from certain levies made by the board of supervisors of Tallahatchie county, pursuant to a decree of the Supreme Court of Mississippi entered in Bank of Commerce & Trust Company v. Com'rs of Tallahatchie Drainage District No. 1, et al., 165 Miss. 582, 138 So. 558. The claim was that plaintiffs held their title under foreclosure of mortgage liens existing as first liens on the lands before the levies in question had been made or ordered, and that plaintiffs held the lands free of levies, (a) because they were not tax, but assessment levies and created no lien upon the lands, and (b) if they created any lien, it being subsequent in time was inferior in law to the lien of the mortgages under which plaintiffs hold.

The defense to the suit was that the levies the decree had ordered and the Board had made were levies of taxes which by the statutes of Mississippi,1 were charged, and secured by a lien, upon the lands prior and superior to all "liens whensoever created."

The District Judge, while recognizing the conclusive and binding force of the Supreme Court decree, and of the levies made by the supervisors of Tallahatchie county pursuant to it, as to all the lands in general affected by them, took plaintiffs' view that the liens of the mortgages under which plaintiffs hold title, were first liens superior and paramount to the lien of the levies, and that by their foreclosure the lands passed to plaintiffs, levy free.

In addition to granting the injunction the decree appealed from required the defendant to restore to plaintiffs amounts already collected under levies on plaintiffs' lands.

A considerable, indeed the greater part, of appellees' brief is devoted to an attack upon the declaration and decree of the District Court that the decrees and judgments leading up to the levies "are all valid and binding judgments and decrees * * * and are binding upon this court, and this court must give full faith and credit to them."2

In their effort to retry the issues already tried in the state courts of Mississippi, they attack as fundamentally invalid the judgments and decrees, establishing the liability of Tallahatchie Drainage District, entered in Tallahatchie Drainage District No. 1 v. Yocona-Tallahatchie Drainage District No. 1,3 the judgment requiring the chancery court to apportion the indebtedness of the drainage district, where the improvements had been abandoned, Bank of Commerce v. Commissioners of Tallahatchie Drainage District No. 1,4 and the decree directing the commissioners to make the levy complained of, Bank of Commerce & Trust Co. v. Com'rs of Tallahatchie Drainage District No. 1.5

Appellant on its part insists that all of these are closed matters; none of them may be re-examined here. That this appeal presents only a single question, whether or not the plaintiffs, claiming under a mortgage prior in date to the judgments and the decree for the levy of taxes, and the levies themselves, can hold their lands free and clear of taxes subsequently and lawfully levied, not by special assessment, upon the interest of a particular owner, but upon the lands themselves.

We agree with appellant. Interesting as these questions appellees seek to raise are, when viewed abstractedly, they are, as applied to this case, no longer questions. Subject as these proceedings might have been, while transpiring, to practical, and as they now may be to abstract, criticism, we may not entertain animadversions on them. We must accept them as they are. For resulting in judgments entered by the highest court of the state in proceedings of which it had full jurisdiction, these judgments and decrees are binding upon us, and we may not inquire into them, except to ascertain and give effect to their purport and meaning. People's National Bank v. Marye, 191 U.S. 272; 24 S.Ct. 68, 48 L.Ed. 180; Merchants' & Manufacturers' Nat. Bank v. Pennsylvania, 167 U.S. 461, 17 S.Ct. 829, 42 L.Ed. 236; Concordia Ins. Co. v. School District, 282 U.S. 545, 51 S.Ct. 275, 75 L.Ed. 528; Jones v. Prairie Oil & Gas Co., 273 U.S. 195, 47 S.Ct. 338, 71 L.Ed. 602; North Laramie Land Co. v. Hoffman, 268 U.S. 276, 45 S.Ct. 491, 69 L.Ed. 953; Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362; Cooper v. Newell, 173 U.S. 555, 19 S. Ct. 506, 43 L.Ed. 808; United States v. Stone, 274 U.S. 225, 47 S.Ct. 616, 71 L.Ed. 1013. We must accept and give them final effect, and so accepting, must limit our inquiry to the single question this appeal presents, whether the levies ordered to pay appellant's judgment were, as appellant claims, levies supported by liens enforcible against plaintiffs' lands, as well as all other lands in the district, or whether these levies were as appellees contend, unsupported, as to plaintiffs' lands, by enforceable liens, and therefore plaintiffs' lands passed to them under the mortgage foreclosures, free from levy and sale to satisfy the judgment.

We agree with appellant that the levies were, and were ordered as, tax levies. That under settled Mississippi law when assessed upon plaintiffs' lands, they "bind the same, and are entitled to preference over all judgments, executions, encumbrances, or liens whensoever created." We find no basis in the statutes or the decisions of Mississippi for the idea appellees advance, that these levies are not tax levies, supported by valid and paramount liens, but something else, amorphous in character, indeterminate in effect, and as to plaintiffs' lands, without lien and void.

Chapter 107, Mississippi Code 1930, articles 1 and 2, section 4371 et seq., constitutes a complete drainage code. Throughout the sections comprising these articles the levies they authorize are designated as "taxes" and are treated, and declared to have the same effect, as state and county taxes.

Article 1, section 4371 et seq., deals with "Drainage Districts with County Commissioners." Section 4397 provides that on or before the first Monday of September of each year, the drainage commissioners shall levy to the necessary tax and certify the levy to the board of supervisors. It shall thereupon become the duty of said board to make the levy in accordance with such assessment.

Sections 4440 to 4445, inclusive, provide that all taxes levied under the terms of any drainage law of the State of Mississippi shall be payable at the same time state and county taxes are payable, and if not paid the lands subject to them shall be advertised and sold in the same manner and with the same consequences, as lands delinquent as to state and county taxes, are.

Article 2, section 4448 et seq., deals with "Districts with Local Commissioners" and therefore directly with the taxes in question here. It provides, in section 4449, for the creation of drainage districts on petition, the payment of expenses by the county as the work progresses, and particularly that "in the event the said district is not organized after said indebtedness has been incurred, then the board of supervisors may levy an acreage or an ad valorem tax against the lands embraced in said proposed drainage district in the manner hereinafter provided."

Section 4459, the section particularly in point here, provides that if for any cause the improvements shall not be made, said costs shall be charged on real property in the district, including railroads, if any, and shall be raised and paid by assessment, "in the event said assessments are not made, or the improvements shall not be completed, or the same be abandoned, for any cause, after such indebtedness is incurred, the board of supervisors of the county in which the drainage district is located if the district is in a single county shall levy an acreage tax, or an ad valorem tax, on the lands in said proposed...

To continue reading

Request your trial
1 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT