Carrier Lumber & Mfg. Co. v. Quitman County

• Decision Date: 11 November 1929
• Docket Number: 27848
• Citation: 125 So. 416,156 Miss. 396,124 So. 437
• Parties: CARRIER LUMBER & MFG. CO. v. QUITMAN COUNTY
• Court: Mississippi Supreme Court

124 So. 437

125 So. 416, 156 Miss. 396

CARRIER LUMBER & MFG. CO. v. QUITMAN COUNTY

No. 27848

Supreme Court of Mississippi

November 11, 1929

Suggestion of Error Overruled Jan. 6, 1920.

(Suggestion of Error Overruled Jan. 6, 1920. In Banc. 125 So. 416.)

1. TAXATION. Where lands had been sold to state for taxes county could not bring action against taxpayer for personal debt for taxes (Hemingway's Code 1927, section 8189).

Where land had been sold to state for taxes, and sales appeared regular on their face, county could not sue taxpayer under Code 1906, section 4256 (Hemingway's Code 1927, section 8189), for personal debt for taxes, since sale to state discharged personal liability of taxpayer, and there was no personal debt on which action under statute could rest.

2 TAXATION. County suing taxpayer alone could not claim that tax sale to state was void and did not discharge debt (Hemingway's Code 1927, section 8189).

County suing taxpayer alone for taxes under Code 1906, section 4256 (Hemingway's Code 1927, section 8189), could not maintain action on theory that tax sale to state was void, and that consequent void title in state did not discharge debt, where state continued to hold conveyance to it as a valid conveyance.

3. TAXATION. Where lands are sold to state for taxes, entire and indivisible title, subject only to right of redemption, goes to state. Where lands are sold to state for taxes, entire and indivisible title, subject only to right of redemption, goes to state.

4 TAXATION. Tax title to state standing good on face in hands of state stands good as to county, and cannot be made otherwise except by action binding state.

So long as tax title to state stands good in hands of state, it must stand good as to county, and, where it is good on its face, it cannot be made otherwise except by action which binds state.

5. PLEADING. Defense that there was no right of action at time action was brought is raised under plea of general issue.

Defense that there was no right of action in plaintiff at time action was brought is raised under plea of general issue.

6. JUDGMENT. Where on face of pleadings no cause of action is stated, no judgment for plaintiff can stand in law or equity.

Where on face of pleadings no cause of action is stated in behalf of plaintiff, no judgment in favor of plaintiff can be allowed to stand.

ANDERSON. J., dissenting.

ON SUGGESTION OR ERROR.

1. TAXATION. Where land was sold to state for taxes, county could not sue alone for taxes due it (Hemingway's Code 1927, sections 8154 et seq., 8189). Where property has been assessed under the provisions of chapter 177, Hemingway's 1927 Code, chapter 122, Code of 1906, and after the tax has become due, the tax collector has made a sale under the provisions of the said section at which the land involved was sold to the state, and such sale is valid upon its face, the county cannot sue alone for taxes due it (the county) under section 8189, Hemingway's 1927 Code, section 4256, Code of 1906, as a sale valid on its face cannot be set aside for facts not appearing on the face of the record without having the state joined as a party in such suit. 2. COUNTIES. Levess and flood control. States. Taxation. Where land is sold to state for taxes, county and levee district taxes remain in abeyance until redemption or sale by state; Legislature may provide conditions on which debts to state or county shall accrue and become valid; statute providing that after tax sale to state county and levee district taxes shall remain in abeyance held not violative of constitutional provision against legislation releasing or postponing obligation to state subdivision (Hemingway's Code 1927, section 8304; Constitution 1890, section 100). Under section 8304, Hemingway's 1927 Code, section 4374, Code of 1906, where land is sold to the state for taxes, the county and levee district taxes remain in abeyance until the land is redeemed or is sold by the state. It is competent for the Legislature to provide conditions on which debts to the state or county shall finally accrue and become valid, and section 8304, Hemingway's 1927 Code, and other statutes in the same chapter, provide a reasonable scheme, and are not void by virtue of section 100 of the Constitution, providing that no obligation or liability of any person, association, or corporation, held or owned by this state, or levee board, or any county, city, or town thereof, shall ever be remitted, released or postponed by the Legislature.

HON. GREEK L. RICE, Judge.

APPEAL from circuit court of Panola county, First district, HON. GREEK L. RICE, Judge.

Action by Quitman County against the Carrier Lumber & Manufacturing Company. From a judgment for plaintiff, defendant appeals. Reversed and dismissed.

Reversed and dismissed. Suggestion of error overruled.

Shands, Elmore & Causey, of Cleveland, for appellant.

The county was without any authority whatever to bring this suit.

Section 309, Code of 1906, sec. 3980, Hemingway's Code 1927; Brabham v. Hinds County, 54 Miss. 363, 364.

Under the circumstances disclosed in the record even if the county had been authorized to bring the suit, the peremptory instruction for the defendant should have been granted.

8 Words and Phrases, 7332 and 4 Words and Phrases (2 Ed.), 1191; United States v. Winona, 67 F. 948, 954; So. National Ins. Company v. Barr, 148 S.W. 845, 846; Capps v. Hensley, 100 P. 515, 518; Haggart v. Wilczinski, 143 F. 22, 27; 4 Words & Phrases (2 Ed.), 1196, 2nd, par. of 2nd Col.; 8 Words & Phrases, First Series, 7335, First Column; Gregory v. Brogan, 74 Miss. 694, 698.

However void the tax sale is, so far as a mere transfer of the title is concerned, the sale is not, it cannot be a nullity. The sale does have legal effect. The relation of the parties is changed. The provisions of section 4345, Code of 1906, section 8269, Hemingway's Code 1927, are written into the conveyance for the very reason that the conveyance is void as a transfer of title.

Cogburn v. Hunt, 56 Miss. 722; Cogburn v. Hunt, 57 Miss. 681; Meyer v. Peebles, 58 Miss. 628; Mason v. Banks, 59 Miss. 447, 449; 3 Cooley Taxation, pages 2874-5; Peavy v. Wood, 71 Miss. 981, 985.

If the land at the tax sale was not offered in subdivisions as required by the statute, the requirement was for the taxpayer's benefit and it is not compulsory that he avail himself of the right to the requirement. No one can compel him to do this. He may waive his rights.

Vassar v. George, 47 Miss. 713, 724; Gregory v. Brogan, 74 Miss. 694, 697; Brown v. Mortgage Company, 86 Miss. 388, 400.

Gore & Gore, of Marks, for appellee.

This action is based on two propositions: (1) section 8189, Hemingway's Code of 1927, makes every lawful tax levied by a county a debt due by the person or corporation owning the property upon which the tax is levied and nothing less than the actual receipt of the money for the tax will extinguish the debt. (2) If a sale shall operate as payment, it must be shown to have been a sale which transferred the title to the thing sold, and resulted in the actual payment of the money into the treasury.

Delta & Pine Land Company v. Adams, 48 So. 190, 93 Miss. 340; Wilkerson's case, 76 So. 563.

The question of the right of the county to sue is not open to controversy.

City of McComb v. Barron, 112 So. 875; National Surety Company v. Board of Sup'rs of Holmes County, 83 So. 8, 120 Miss. 706.

The argument as to the sale being void to the degree that it did not transfer the title, and yet operated as payment rises to no higher dignity than the argument that payment with counterfeit money or a bad check is, none the less, payment.

Hodges Shipbuilding Co. v. City of Moss Point, 144 Miss. 657.

Griffith, J. Anderson, J. Ethridge, J.

OPINION

Griffith, J.

On the 1st day of February, 1927, the appellant was the owner of certain lands in Quitman county which were regularly and validly assessed for taxes and to the appellant, by name, as the owner thereof. Appellant failed to pay the taxes due on said property for the said year, and on the first Monday, the 2d day of April, 1928, the tax collector sold all said lands to the state, and duly made and filed his list showing said sale. The said sales and the list thereof appears regular on their face, and apparently convey the title to the state.

On July 3, 1928, appellee, Quitman county, filed its declaration in the circuit court of said county demanding a personal judgment against appellant for the amount of the taxes alleged to be due to said county by appellant on said lands for the said year, 1927; and in the course of the trial appellee took the position, and was allowed to offer proof, that the tax sale aforesaid, although regular and valid on the face of the record, was in truth invalid because of facts de hors the record; and the trial court, being of the opinion that the extrinsic proof of invalidity was sufficient, entered a judgment in favor of the appellee county for the amount of the county taxes.

The action was instituted under section 4256, Code 1906 (section 8189, Hemingway's 1927, Code), which reads as follows: "Every lawful tax levied or imposed by the state, or by a county, city, town, village, or levee board is a debt due by the person or corporation owning the property or doing the business upon which the tax is levied or imposed, whether assessed or properly assessed or not, and may be recovered by action; and in all actions for the recovery of taxes the assessment roll shall only be prima-facie correct." In Delta & Pine Land Co. v. Adams, 93 Miss. 340, 48 So. 190, 193, it was said by our court that it was and is the purpose of this statute "to give to the sovereignty a better right, and an additional and more...