Byers Mach. Co. v. Cobb Bros. Const. Co.

• Decision Date: 14 March 1938
• Docket Number: 33062
• Citation: 182 Miss. 212,179 So. 565
• Court: Mississippi Supreme Court
• Parties: BYERS MACH. CO. v. COBB BROS. CONST. Co. et al

179 So. 565

182 Miss. 212

BYERS MACH. CO. v. COBB BROS. CONST. Co. et al

No. 33062

Supreme Court of Mississippi

March 14, 1938

Division A

Suggestion Of Error Overruled June 6, 1938.

APPEAL from the chancery court of Winston county, HON. T. P. GUYTON Chancellor.

Suit by the Byers Machine Company against the Cobb Brothers Construction Company and others for a gasoline steam shovel. From a judgment dismissing the bill, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

E. M. Livingston, of Louisville, for appellant.

Upon an examination of the assessment or personal property, a copy of page 113 of the assessment roll of Issaquena County attached as Exhibit "C" to the agreed statement of facts, we find that Section 3128 has not been complied with in that the tax assessor did not set down each item of personal property. He only listed totals showing machinery, etc., assessed to M L. Gaines of $ 7000.00, machinery, etc., assessed to J. T. Gaines $ 3000.00. We submit that the tax assessor in order to make a legal assessment must set down each item indicating what it is, from the assessment in this case it is impossible to determine whether the assessment was even machinery, it could as well have been tools, implements and equipment insofar as the roll imparts information. The assessment roll is the only record and the only place the sheriff could go for information as to the property that might be liable for taxes, and the roll contained insufficient information for the sheriff to know or to ascertain what property might have been assessed to M. L. Gaines, J. T. Gaines or C. E. Gaines.

If the Gaines had been moving shovels in and out of Issaquena County, and we have no evidence to show that they have not been doing this, the sheriff could not have a machine taken in to the county after the first of January for the taxes due on another machine. The power given the tax collector to collect taxes by distress is on the theory of a lien existing against the identical piece of property he undertakes to sell, and the only way a lien can be created for taxes is by a legal and proper assessment being made against the specific property to be sold by the sheriff case therefore, for a lien to exist for taxes it is necessary that the tax assessor place on the rolls a description of the property he is assessing.

Carr v. Barton, 162 So. 172; U. S. v. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 14 A.L.R. 145; McQueen v. Bush, 76 Miss. 283, 24 So. 196; Bowers v. Andrews, 52 Miss. 596; Dodds v. Marks, 63 Miss. 443.

The sheriff could have made a legal and valid description of the property in his notice of sale, but we find in the notice, copy of which is attached to the agreed statement of facts, that the sheriff did not undertake to describe the property in his notice of sale.

It is my opinion that under the opinion of the Supreme Court in the case of Robertson v. Puffer Mfg. Co., 112 Miss. 890, 73 So. 804, that if the machine involved in this litigation was in Issaquena County on the date that fixed liability for taxation for the year of 1933 it should have been assessed to this appellant and appellant should have been properly notified of the assessment.

Section 3132, Code of 1930.

Section 3228, Code of 1930, provides that all taxes remaining unpaid after the first day of February shall immediately be collected by the tax collector by distress and sale of any personal property liable therefor and such sale shall take place at the courthouse door unless the property distrained be too cumbersome to be removed. This section fixes no definite date for the sale of personal property, but makes provisions that it shall be sold immediately after the first day of February. In this instance so far as the records show and the presumption is that the property was in the county on the time, but still the sheriff made no effort whatever to dispose of this property until the 19th day of September, 1934.

We are unable to determine from the assessment as made up by the tax assessor and the assessment roll itself who owned the property the tax collector undertook to sell, cannot determine whether it was claimed by J. T. Gaines or M. L. Gaines or both, but the record is sufficiently clear to warrant the argument that the property was claimed by J. T. Gaines and M. L. Gaines and claimed by them as partners. If this be true then the sheriff would have been authorized, under the law, to sell only a sufficient amount of the property to cover the taxes if a legal assessment had been made.

Strowd v. Southern Eng. & Works, 100 Miss. 895, 57 So. 218.

It will be noted from the exhibits to the agreed statement of facts that appellant offered to pay the taxes if any were due, and offered to redeem the property from the tax sale immediately after receipt of information that its property had been sold. This tender was made under the provisions of Sections 3241, 3242, and 3243 of the Code of 1930. It is true that these sections have been repealed by Chapter 188 of the Laws of 1934, but the act of the Legislature repealing these sections did not take effect until after September 30, 1934, therefore, the provisions of the Code of 1930 were in full force and effect on the date the tax sale in this instance was made.

Section 3162 of the Code of 1930, has no application whatever in this case for the simple reason that no valid assessment was ever made against the property of this appellant, and no valid sale thereof was ever made.

The appellant had no opportunity whatever to pay the taxes on its property until after the sale had been made, and it then discovered by accident that its property had been sold for taxes and I respectfully submit that the property was taken without due process of law.

The process of distress for the collection of taxes is a summary remedy provided by statute which was in use in this country before the revolution and has always been held to constitute due process of law. It should be remembered that distress is nor the enforcement of a lien. The property seized must be the property of the person taxed when it was seized and it need not be the property in respect to which the tax was assessed. Even the doctrine that a sale of personal property without change in possession is fraudulent in law will not justify the distraining of property no longer belonging to the person assessed, though still in his possession.

26 R. C. L. 340; Murry v. Hoboken, etc., Co., 18 How. 272, 15 L.Ed. 372; Springer v. U.S. 102 U.S. 586, 26 L.Ed. 253; Kelly v. Pittsburg, 104 U.S, 78, 26 L.Ed. 658; Palmer v. McMahon, 133 U.S. 660, 10 S.Ct. 324, 33 L.Ed. 772; King v. Mullins, 171 U.S. 404, 18 S.Ct. 925, 43 L.Ed. 214; Wulzen v. San Francisco County, 101 Cal. 15, 35 P. 353, 40 A. S. R. 17; Detroit v. Board of Assessors, 91 Mich. 78, 51 N.W. 787, 16 L.R.A. 59; Acme Harvesting Mach. Co. v. Hinkley, 23 S.D. 509, 122 N.W. 482, 21 Ann. Cas. 743; State v. Sponaugle, 45 W.Va. 415, 32 S.E. 283, 43 L.R.A. 727; L.R.A. 1915D 892; Daniels v. Nelson, 41 Vt. 161, 98 Am. Dec. 577.

An assessment roll which purports to assess a tax against personal property not listed therein, and which fails even to show that the taxpayer owns any personal property, is a nullity and will not justify the imposition of a personal property tax.

State v. Kidd, 28 So. 480; Savings, etc., Soc. v. San Francisco, 63 P. 665; San Francisco v. Flood, 2 P. 264.

I do not contend that either of the Gaines could be heard to complain of a void assessment in this instance because they evidently undertook to list property for assessment, but neither J. T. nor M. L. Gaines had any authority to act for this appellant. No relationship of principal and agent existed and they did not undertake to act for the appellant, but undertook to give in an assessment of the property as their property, when the truth about the matter is neither of the Gaines had any title whatever to the property in question. I think it very material to this law suit that it be shown that the machine here in question was released by the district court in Alabama for the bankruptcy proceeding of M. L. Gaines because that shows conclusively that the property was restored by the bankrupt court back to the appellant.

J. A. Covington, Jr, of Meridian, for appellee, Cobb Bros. Construction Company.

It is admitted that the machine company had no actual notice of the assessment and no notice except such as was imputed by law. It appears, however, from the agreed statement of facts that this gasoline shovel was moved into Issaquena County during the year 1932, where it remained until October 1934, when Cobb Bros. Construction Co., removed it to Winston County. The machine was therefore in Issaquena County on the first day of January 1933, and was subject to taxation.

Section 3121, Code of 1930, provides that all taxable property brought into the state or acquired or held before the first day of January shall be assessed and taxes thereon paid for the ensuing year. Section 3121 makes every lawful tax imposed a debt due by the owner whether properly assessed or not.

Section 3123 provides that all tangible personal property shall be assessed in the county in which same may be on the day the tax lien takes effect, provided it shall be kept in such county for the greater part of such current year and the list therefor may be rendered by an agent or by the owner.

Section 3120, Code of 1930.

Powell v. McKee, 81 Miss. 229, 32 So. 919, holds that personal property may be lawfully assessed to an unknown owner.

Colbert v. Board, 50 Miss. 143; Teche Lines v. Board, 142 So. 24.

We have no statute or decision requiring that a person taxed or a person owning personal property taxed be given actual notice of the assessment....