Brougher v. Stone

• Decision Date: 29 April 1895
• Citation: 72 Miss. 647,17 So. 509
• Court: Mississippi Supreme Court
• Parties: F. M. BROUGHER ET AL. v. S. C. STONE

17 So. 509

72 Miss. 647

F. M. BROUGHER ET AL. v. S. C. STONE

Supreme Court of Mississippi

April 29, 1895

FROM the chancery court of Quitman county, HON. W. R. TRIGG Chancellor.

The bill in this case was filed by appellants in 1890 to cancel a tax title of appellee to lots 5 and 11, section 35, and other land described in the bill. At the hearing a written agreement was read, stating that the defendant, Stone, had held actual adverse possession of lot 5 for more than three years next before the commencement of the suit, under his deed from the state, dated April 21, 1881. There was no testimony whatever as to the possession of the other land. All the land was sold to the state, under the abatement act in May, 1875, for the unpaid levee taxes due thereon for the year 1874. This was illegal. The law provided for sale under the abatement act only of lands held or claimed for taxes prior to 1874. The opinion contains a further statement of the case. From a decree dismissing the bill complainants appeal. Section 539, code 1880, provides that: "Actual occupation for three years after one year from the day of sale of any land held under a conveyance by a tax collector in pursuance of a sale for taxes, shall bar any suit to recover such land, or assail such title, because of any defect in the sale of such land for taxes, or in any precedent step to said sale, saving to minors," etc.

Reversed.

J. W. & W. D. Cutter, for appellants.

1. There can be no controversy as to the invalidity of the title acquired under a sale for the unpaid taxes of 1874 in May, 1875, by virtue of the abatement act. Gamble v. Witty, 55 Miss. 26; Dingey v. Paxton, 60 Ib., 1038; Sigman v. Lundy, 66 Ib., 522.

2. The defense, resting upon the three years' occupation, is, by agreement, expressly limited to lot 5. The burden of showing such occupation rested upon the defendant, and there was no proof as to this except by the terms of the agreement, which applies only to lot 5. This agreement necessarily excludes the idea that the occupation extended to the other land. The expression of one thing is the exclusion of others. In the absence of proof, the presumptions of possession are always with the legal title.

3. The court cannot take judicial notice of the location of lots in a section. Their location on streams is irregular, and they vary in size.

4. Even if the levee taxes of 1874 were due, the lands should have been sold and conveyed to the levee board, and not included in a list of land sold to the state. Laws 1858, p. 33; Laws 1867, p. 246; Laws 1873, p. 150.

5. The lands were not of a class to be sold under the abatement act, and, for this reason, the sale is void. The three years' occupation will not benefit a party holding a tax title to lands unlawfully sold to the state under the abatement act. This limitation was intended to cure defective titles and not void ones. It was not intended to dispense with a valid assessment and levy. Without these constitutional prerequisites, a tax sale is void. Virden v. Bowers, 55 Miss. 1. This is the clear inference to be drawn, also, from the opinion in Jonas v. Flanniken, 69 Miss. 577. The views we contend for are not in conflict with the opinion in Patterson v. Durfey, 68 Miss. 779, the defect in the tax deed in that case being only an irregularity in the assessment. Here there is no delinquency shown in the payment of taxes prior to 1874. There was no claim of title by the state under any sale, good or bad.

6. There is not sufficient evidence that the land was sold to the state in May, 1875, or at any time. The deed from the auditor is not alone sufficient; there must be shown a duly certified list of lands sold to the state. There is no duly certified list in evidence in this case.

7. The receipts in evidence show that all state and county taxes for 1874 were paid, and the sale was attempted to be made to the state for the nonpayment of levee taxes only. This was illegal. Sales to the levee board were to be evidenced by deed, and no sale was authorized to be made to the state for default in payment of levee taxes only. On this point we refer to Clay v. Moore, 65 Miss. 81; Patterson v. Durfey, 68 Ib., 779; Bennett v. Chaffe, 69 Ib., 279.

A. Montgomery and Brame & Alexander, for appellee.

1. Defendant's actual occupancy of lot 5 for more than three years after one year from the date of sale, is an absolute bar to complainants' right to recover as to that lot. Code 1880, 539. In Metcalfe v. Perry, 66 Miss. 68, it was held that proof of payment of taxes vitiated a tax title, notwithstanding section 7 of the act of 1860, and the lapse of five years after a sale thereunder. But that act, unlike § 539, code 1880, did not provide for possession in connection with the lapse of time after acquirement of the tax title. Under the code, the right to hold land depends upon the possession and the lapse of time thereunder, and not upon the validity of the original title. If this was absolutely void, or even if the taxes had been paid, the title is cured by the possession. Patterson v. Durfey, 68 Miss. 779; Jonas v. Flanniken, 69 Ib., 577. This is true, even if the land was held by the levee board and was not originally subject to sale for taxes. Carlisle v. Yoder, 69 Miss. 384.

2. Lots 5 and 11 were embraced in the same deed from the auditor, and the possession of one carried possession of both. The lots were contiguous, and defendant paid taxes on both. 37 Miss. 155; Ryan v. Railway Co., 62 Ib., 162.

3. The court takes judicial notice of the government survey, which shows that the lots are contiguous....