Alvis v. Hicks

• Decision Date: 02 April 1928
• Docket Number: 27056
• Citation: 150 Miss. 306,116 So. 612
• Court: Mississippi Supreme Court
• Parties: ALVIS et al. v. HICKS et al. [*]

116 So. 612

150 Miss. 306

ALVIS et al. v. HICKS et al. ^[*]

No. 27056

Supreme Court of Mississippi

April 2, 1928

Division B

Suggestion of Error Overruled May 7, 1928.

APPEAL from chancery court of Hinds county, First district, HON. V J. STRICKER, Chancellor.

Suit by C. W. Hicks and others against A. H. Alvis, city of Jackson and others, in which the city of Jackson filed a cross-bill. From the decree, defendants appeal. Affirmed.

Affirmed.

R. L. Bullard, for appellants.

The cross-bill should have been dismissed. The answer to the cross-bill denies that there was any valid city assessment. To establish this it was necessary to show notice before the roll was approved. The approval of the roll is a judicial act performed by a court of special and limited jurisdiction, subject to all the limitations and requirements of such courts. All facts essential to its jurisdiction must affirmatively appear on the face of its record. It cannot establish its jurisdiction by its own judgment for no presumption is indulged in favor of its own judgment with respect to jurisdiction, as of courts of general jurisdiction. Nixon v. Biloxi, 76 Miss. 810, 25 So. 664. But a still more fatal infirmity than this appears; one that cannot be cured. No evidence of a sale to the city was produced, and the clerk testified that none has ever existed "in permanent form." A sale of land for taxes can only be evidenced in the manner fixed by law. The evidence of title on a sale to the state or municipality is an official list of such sales made and certified by the tax collector. Sec. 3428, Code of 1906. The city of Jackson seems not to have kept any list of lands sold to the city, and this was made necessary by law. Shelby v. Burns (Miss.), 114 So. 349 is decisive of this proposition. It is there held, "In a suit to confirm tax title, complainant must introduce tax sale list, signed by the collector or his authorized deputy."

It may be contended that another sale was made to the city in 1922. If so a sufficient answer to that is to say that it was subject to the sale made to the state for delinquent state and county taxes before the time for redemption had expired. This is true under any construction that may be placed on the last sentence of sec. 3428, Code 1906, viz.: "But such title shall be subject to a title acquired under a sale for state and county taxes." This alleged sale to the city, if made, was on May 1, 1922, and the sale to the state was for the state and county tax of the next year, 1923. The city should at least have paid the state and county tax of that year and charged the amount of it upon redemption, or sale of the land, as under sec. 3427, Code 1906, it might have done.

The right of a municipality to tax is subordinate to the right of the state and county. The right to buy at its own tax sale is purely a means of collecting its taxes, and it can hardly be said with any reason that a means of enforcing a city tax rises any higher than the power to levy the tax. If one is subordinate both must be. The city is authorized to pay the state and county taxes on lands "thus acquired by it" and it has not acquired the lands until the period of redemption has expired and its inchoate right has ripened into a title. 37 Cyc. 1355. It cannot be said with any reason that the statute exempting municipal property from state and county taxation had any reference to land bought at tax sale to enforce payment of its taxes. The grant of authority to municipalities to acquire and own property, and it is limited to such municipal uses as are authorized of cities, towns and villages. Sec. 3314, Code of 1906. At the same time was passed sec. 4251, as follows: "The following property, and no other, shall be exempt from taxation, to-wit: All property, real or personal, belonging to this state, or to any county, levy board or municipal corporation thereof." Now what property was referred to? Certainly that which municipalities were granted power to acquire and own "for such purposes." In no sense would land held by the municipality to enforce collection of its taxes be city property. Removing this from any doubt, the last sentence of sec. 3428 was passed declaring: "But such title shall be subject to a title acquired under a sale for state and county taxes," and the last sentence of sec. 3427, which authorized the municipality to pay the state and county tax on "lands thus acquired by it." Construing all these statutes together, as must be done, do they admit of any other interpretation?

The original bill. Is the interest owned by C. W. Hicks, now subject to redemption? Can he redeem it, or can it be redeemed for him? He was the owner but it was his duty to hold and protect it for the interest of the minors. His was the title. His was the duty to pay the tax. His was the duty to redeem it when sold; and his is the liability to those he owed these duties for having neglected them. The right to redeem is purely statutory and the statute must be looked to in order to find out who has the right to redeem. Sec. 4338, Code 1906, provides that, "the owner or any person for him," may redeem. None but the owner or some one for him has the right. Since he was under no disability this right expired with two years. In 37 Cyc. 1386, it is said: "In many states laws permit a redemption from a tax sale to be made by one whose claim of interest in the land is based on an imperfect, incomplete or equitable title." We have no such statute and it is submitted that the right of C. W. Hicks, the trustee, is barred. The remedy of the beneficiaries of his trust is against him. If it is held that the complainants have shown no right to redeem any interest, the bill and cross-bill ought both to be dismissed. If not then the cross-bill should be dismissed and the remainder of the cause remanded for the redemption of such interest as the court finds subject to redemption and a partition of the lands according to the prayer of the bill.

Morse & Bryan, for appellee city of Jackson.

There was a compliance of all requirements of the law by the city clerk with reference to the sales. Mr. A. J. Johnson, city clerk, who made the city rolls, introduced a copy of the records and showed a copy of the roll, the page and line and lot number and subdivision and to whom assessed in 1920 and 1921. Mr. Johnson stated that he wrote this record himself; that the records were made under his supervision and in his office; that it is a permanent record and list of every piece of property sold to individuals and to the city of Jackson in regular order, as it appears on the advertising list and tax roll. The pleading discloses the fact that the tax sale made in the county was made in June, 1924, which the title to the city of Jackson would have ripened in May, 1924. The city also had title to the property by tax deed in 1921, which would have ripened in 1923. The ordinance certified that due and legal notice was given. The records appear to be correct in every particular and outside of that, there would be a presumption of the correctness of the actions of the officials unless it was shown that they were incorrect. The appellants herein averred that it was the duty of the city to pay any other tax. There was no proof introduced on this. There is a section of the Code, however, that states that municipalities may pay the state and county taxes on lands and collect it. See sec. 7011, Hemingway's Code 1927. This is not mandatory, however, and especially in this case where the title had ripened and become perfect in the municipality before sale being made to the county. We do not think Shelby v. Boone (Miss.), 114 So. 379, is applicable for the reason that in the instant case the tax collector introduced the original tax sales which were filed by him, and in addition thereto the original deeds which were on file in the city clerk's office and subject to redemption by any person interested desiring to redeem the same.

The property under the tax sale passed to the city of Jackson, and the sale as made to the state was illegal for at that time the title had vested in the municipality. This case, in our opinion, is controlled by Laurel v. Weems, 100 Miss. 335, 56 So. 451, that being the case where the municipality purchased a piece of property against which the tax lien had already accrued. The property was sold for taxes and purchased by Weems who asserted title thereto. The court held that by the municipality having acquired title to the property that it automatically went off of the tax roll.

Lamar F. Easterling, for appellees, C. W. Hicks, et al.

As between the minor heirs of H. L. Hicks and defendant, Mrs Little Barskdale Hicks, on the one hand, and Alvis, Latimer, and Street, on the other hand, the defendants Alvis, Latimer and Street having failed to prove any title as they had averred in their answer, their claim should have been and was properly cancelled by the court below. It is up to each party under the peculiar aspect of the bill to prove its right to receive the redemption money. The minor heirs of H. L. Hicks offered to pay the requisite amount necessary to redeem. They did not know who to pay it to with safety. So to speak, this amount necessary to redeem the lots became a fund offered to be paid into the chancery court. If Alvis, Latimer and Street acquired a valid sale on June 2, 1924, they became entitled to receive from the court the redemption money for one-half of said lots, but in order to receive this redemption money for one-half of said taxes, damages and costs, it was necessary that they prove to the courts their claim therefor. If the city of Jackson had made no claim to the lots whatsoever and had failed to even answer the bill, that so far as Alvis, Latimer and Street are...