Acoff v. Roman

• Decision Date: 25 February 1935
• Docket Number: 31579
• Citation: 172 Miss. 141,159 So. 555
• Court: Mississippi Supreme Court
• Parties: ACOFF et al. v. ROMAN

159 So. 555

172 Miss. 141

ACOFF et al. v. ROMAN

No. 31579

Supreme Court of Mississippi

February 25, 1935

Division B

1 TAXATION.

Party relying on tax title must prove title out of the government in addition to his tax deed (Code 1930, section 1578).

2 EJECTMENT.

Plaintiff in ejectment case must show in himself a valid, paramount legal title.

3 TAXATION.

Plaintiff relying on tax deed in ejectment case was required, in addition to introduction of tax deed, to prove that title had passed out of government, notwithstanding fact that defendants claimed by private deed, where there was no proof of long-continued possession or acts of ownership (Code 1930, section 1578).

HON. S. F. DAVIS, Judge.

APPEAL from circuit court of Washington county HON. S. F. DAVIS, Judge.

Action by I. Roman against W. H. Acoff and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Reversed and remanded.

B. B. Carmichael, of Greenville, for appellants.

If we are correct in the statement that suits in ejectment require at least the degree of proof as suits to confirm tax title, the statement of the law in Griffith Chancery, page 219, covers this case: "And the bill must show that the title had passed out of the Government at the date of the imposition of the tax lien for which the tax sale was made, and if the bill does not show this a decree based on it is void for unless the full equitable title had passed out of the government it was not taxable and a sale of it would be absolutely and fundamentally void. A confirmation of a tax title is void and of no avail if there were no kind of a tax title to confirm. There can be no tax sale of government lands and there can be by confirmation no life given to something the was always utterly void.

The plaintiff on the trial of this case should have gone out of court when he failed to show, as was impossible for him to have done, that the title to the land in quesion had passed out of the Levee Board and the Liquidating Levee Commissioners so as to have made the land a proper subject of assessment and sale for taxes.

The land records of Washington county disclosed that the title of the Levee Board and the Liquidating Levee Board has not been divested, therefore, the sale of the land to the appellee, for taxes of 1930 was without authority of law and has no standing for any purpose.

S. V. Anderson and D. S. Strauss, both of Greenville, for appellee.

The appellants entirely misconceived the nature of the action and their rights in this proceeding. Title to the land was in the appellants and the assessment was made against the appellants as the owners of the land, and the position of the appellants is that they sought to interpose an outstanding claim of title on the part of the third person as a defense to this action of ejectment.

Section 3273, Code of 1930; sec. 1578, Miss. Code 1930.

Admitting for the sake of argument that there was an outstanding title in the Levee Board, which title passed to the state, the appellants cannot set up this title to defeat the present action of ejectment. They make no claim that they have obtained this title, if such a title is outstanding, and our court has consistently held that an outstanding title in a third person cannot be set up by a defendant where the plaintiff claims title through a common source.

Doe v. Parker, 3 S. & M. 114, 118; Doe v. Pritchard, 11 S. & M. 327; Wolfe v. Doe, 13 S. & M. 103; Smith v. Doe, 26 Miss. 291; Griffin v. Sheffield, 38 Miss. 359, 391.

The above authorities preclude any argument as to there being an outstanding title conflicting with the title obtained by the appellee from the appellants through the tax sale.

OPINION

Griffith, J.

Appellee brought an action of ejectment against appellants, and on trial introduced his tax deed to the land in issue, and rested. It appears, however, in the evidence introduced by the defendants, appellants here, that there is a deed of record to appellants; but this deed is not in the transcript and thus it is not shown who was the grantor therein.

Appellants requested a peremptory instruction upon the ground, among others, that there was no proof that the title to the land has passed out of the United States government. This point has not often directly arisen either in this state or elsewhere, that is, whether, in addition to the introduction of the tax deed, it is necessary to show that the title has passed out of the government, so as to become the subject of taxation.

Because of the fact that the divestiture of the title of the owner by tax sale is in invitum as to him, and is often for a trifling consideration in comparison with the actual value of the property and more often still is brought about because of unfortunate financial conditions, rendering the owner helpless, the common law indulges no presumptions in favor of the validity of tax sales, and except as modified by statute, the tax title claimant has the burden to affirmatively prove substantial compliance with every step necessary to make out a valid tax title. In the course of time, however, because of loss or confusion in the multitude of taxation records in the courthouses of the country, rendering tax titles of but little practical value, statutes were enacted making tax deeds prima facie evidence of their validity.

Our statute, sec. 1578, Code 1930, reads as follows: "A conveyance made by a tax-collector [now by the chancery clerk] to an individual purchaser of land at a sale for taxes, and the list of lands sold to the state at such sale, shall be prima facie evidence that the assessment and sale of the land were legal and valid."

This statute is capable of two constructions. One construction is that since there can be no legal and valid assessment...