Bass v. Batson

• Court: Mississippi Supreme Court
• Writing for the Court: Cook, J.
• Citation: Bass v. Batson, 157 So. 530, 171 Miss. 273 (Miss. 1934)
• Decision Date: 12 November 1934
• Docket Number: 31416
• Parties: BASS v. BATSON

157 So. 530

171 Miss. 273

BASS v. BATSON

No. 31416

Supreme Court of Mississippi

November 12, 1934

Division A

Suggestion Of Error Overruled December 10, 1934.

APPEAL from the chancery court of Lamar county HON. T. PRICE DALE Chancellor.

Suit by N. Batson against I. H. Bass, wherein defendant filed a cross-bill. From a decree sustaining a demurrer to the cross-bill, defendant appeals. Reversed and remanded.

Reversed and remanded.

John A. Yeager, of Lumberton, for appellant.

In the absence of evidence to, the contrary, the courts are bound to presume that public officers have not culpably neglected, but properly discharged, their official duty; and that their acts are in all respects regular. Every reasonable presumption will be indulged in favor of sustaining the ministerial acts of officers.

10 R. C. L. 880; 2 Stork Ev. 684; Douglass v. Mitchell's Ex., 35 Pa. 440; Black's Law Dict. (3d), p. 1410; 3 Words and Phrases, 4 Series, p. 157; Jones on Evidence, Pocket Ed. 1912, secs. 45, 46; Cooper v. Grandberry, 33 Miss. 117.

The cross-bill of complaint, being a part of the record, will receive judicial notice, as evidence in the case, at the hands of the court.

Griffith Mississippi Chancery Practice, sec. 572.

The material facts therein properly pleaded are admitted to be true by force of the demurrer.

"Prima facie" evidence means sufficient evidence upon which a party will be entitled to recover if his opponent produces no further testimony.

Eckman Chemical Clo. v. Chicago & N.W. Ry. Co., 185 N.W. 444, 446, 107 Neb. 268; 6 Words & Phrases (3rd series), p. 88.

The sheriff and tax collector having failed to advertise, and sell the lands on April 7, 1930, as required by section 3249, Code of 1930, thereafter, on April 8, 1930, the board of supervisors passed and spread upon its minutes the order hereinabove set out, directing the delinquent land tax sale to be held the first Monday (5th) in May, 1930, as authorized by section 3252, Code of 1930.

The case at bar is controlled by the laws in effect May 5, 1930, the date of sale.

Price v. Harley, 107 So. 663.

Sections 3249 and 3252 are in part materia and must be construed together in applying the legal scheme of tax sales and, therefore, section 1578 (prima facie statute in support of the validity of tax deeds) is equally applicable to sales made under either section.

Wm. H. Maynard, Assistant Attorney-General, for the state of Mississippi, amicus curiae.

Section 8297 of the 1927 Code does not direct that certain lands be condemned by the board of supervisors for sale as contended by appellee, but merely provides that the board shall set the date for sale of lands already liable for sale. This was an important provision of law for it took out of the discretion of the sheriff and tax collector the fixing of his own date for sale.

Appellee's contention that the land ordered by the board to be sold on May 5, 1930, should have been individually and separately described would reduce the law to an absurdity.

That the board had the power to order all lands delinquent for taxes for the previous year to be sold at a date subsequent to the date set by law is evident, both from an examination of section 8297 of the 1927 Code and the language of the court in its opinion in the case of Brougher v. Conley, 62 Miss. 358.

Although we are unable to find a case directly in point on the proposition of our case, there are two cases in Mississippi which have considered the type of order used by the board of Lamar county. Although the court in both of these cases held that the order was entered at the wrong time there was no intimation that said orders were insufficient as to the description of land to be sold.

Brougher v. Conley, 62 Miss. 358; Clarke v. Frank, 64 Miss. 827.

N. Batson, of Woodville, for appellee.

The statute fixes the lien, the assessment, supposed to be made with judgment and discretion as to each piece or parcel of land fixes the amount of the lien against particular property; the statute, section 3249, is the judgment and execution or fieri facias in the hands of the collector, returnable on the first Monday of April. After that date he has no authority to foreclose the lien until so authorized by the board of supervisors under section 3252. And it is submitted that he should make full report to the board describing each piece of land, the amount of taxes, damages, etc., and that the board sitting as a court should examine such report, scrutinizing each parcel or piece of land described with judgment and discretion, and if found correct, order the sale of each by exact or known descriptions. This is the judgment of the board on which the order to sell is based.

Woods v. Morath, 91 So. 131.

The judgment of the hoard condemns certain lands to be sold, which lands cannot be ascertained without an order spread upon their minutes describing same, any more than lands may be condemned in other proceedings without describing them.

The land assessment roll in the hands of the tax collector is the latter's writ of execution, so to speak, for the enforcement of such judgment. Such execution expired, was returnable, so to speak, with sale day fixed by the statute, that is, first Monday of April, and afterwards the tax collector has no authority under that writ, and cannot foreclose the lien of the assessment without another writ or order, and the other statute provides what court may issue such order.

Wood v. Morath, 91 So. 131.

Statutory requirement that the tax collector shall make and return a list of the lands on which the taxes have not been paid is imperative.

37 Cyc., Taxation, p. 1293E.

Argued orally by John A. Yeager, for appellant, and by Wm. H. Maynard, for appellee.

OPINION

Cook, J.

Appellee filed a bill in the chancery court of Lamar county seeking to cancel two tax deeds issued to the appellant, as the purchaser at a tax sale held on May 5, 1930, for taxes delinquent for the year 1929....