Carter v. Moore

• Citation: 183 Miss. 112,183 So. 512
• Decision Date: 10 October 1938
• Docket Number: 33287
• Court: Mississippi Supreme Court
• Parties: CARTER v. MOORE et al

183 So. 512

183 Miss. 112

CARTER v. MOORE et al

No. 33287

Supreme Court of Mississippi

October 10, 1938

Division B

Suggestion Of Error Overruled October 24, 1938.

APPEAL from the chancery court of Tunica county HON. R. E. JACKSON Chancellor.

Suit to confirm tax title by E. Bunyan Carter against Dr. Jules Verne Moore and others, wherein the defendants filed a crossbill setting up title in themselves which they prayed to be confirmed. From a final decree confirming the defendants' title, the plaintiff appeals. Affirmed.

Affirmed.

J. M. Forman, of Indianola, W. A. Stigler, of Tunica, and Julian C. Wilson, of Memphis, Tenn., for appellant.

The deed of the tax collector is prima facie evidence of the validity and regularity of the assessment, the levy, the subjection of the land to taxation and it is also prima facie evidence that the taxes were in default, that the sale was regularly and lawfully conducted, of the sale's validity and of the vesture of title in the purchaser at tax sale.

Lewis v. Griffin, 103 Miss. 578; Jones County Land Co. v Fox, 120 Miss. 798; Salter v. Polk, 172 Miss. 263.

The recitals in the tax deeds that the sales were made according to law are direct and positive evidence that all requests and requirements necessary to the validity of the tax sale were met, carried out and complied with, and in the absence of positive testimony that the sale was not made in accordance with the requirements of law, these recitals prevail. In the absence of such testimony, the tax deeds are valid and cannot be overthrown. (It will be remembered that the sheriff made these deeds before the Code of 1930. Hemingway's Code 1918, Sections 6965, 6966.)

Mixon v. Clevenger, 74 Miss. 67; Lewis v. Griffin, 103 Miss. 578; Thibodeaux v. Havens, 116 Miss. 475; Neal v. Shephard, 157 Miss. 736.

The presumption from the tax collector's conveyance, together with the recital that the sale was made in accordance with law furnished direct evidence that where it was necessary that the land in two sections be offered as a whole that it was so offered. The recitals are the equivalent of the deeds themselves saying in words that although the deeds are separately made that since the law required that the lands be offered together they were sold together. The requirement of the statute is that the lands shall be offered and sold together but there is no requirement that they should be embraced in the same deed. The fact that they were embraced in the two deeds with the recitals that the sale was made according to law does not overthrow either the presumption nor the recitals of the deeds and there is, therefore, no evidence that the lands were not offered and sold together.

Lewis v. Griffin, 103 Miss. 578.

The evidence of the deputy collector who made the sale that while it was his custom to offer and sell lands assessed in separate sections separately even though assessed to the same owner is not sufficient to overthrow the presumption of the statute and the recital of the deeds where he testifies he had no independent recollection of this sale but knew that he had sold land according to the direction of Mr. Jaquess, the attorney for complainant and knew Mr. Jaquess was present at this sale but did not recollect whether he gave him any directions about how to make this sale or not.

Mixon v. Clevenger, 74 Miss. 67; Neal v. Shephard, 57 Miss. 736.

Actual occupation for three years after two years from the day of sale of land held under conveyance from tax collector in pursuance of sale for taxes bars any suit or any assault upon the tax title so received because of any defect in the sale of the land for taxes or any preceding step to the sale.

Section 2459, Hemingway's Official Code of 1918, bringing forward Chapter 233, page 304, of the Mississippi Laws of 1912, also carried forward in Section 2288 of the Mississippi Code of 1930; Gibson v. Berry, 66 Miss. 515; Jonas v. Flannikin, 69 Miss. 577; Butts v. Ricks, 82 Miss. 533; Hamner v. Lbr. Co., 100 Miss. 349.

Three years actual occupation from the redemption period cures all defects and irregularities in the sale if the land is subject to taxation, curing not only irregularities in assessment but particularly and specifically any failure to comply with the statutes or law with reference to the manner of sale, offering of the lands, and whether it is sold together, separately or as a whole. It is a statute of rest that confers a good title independent of the manner or character of sale.

Gibson v. Berry, 66 Miss. 515; Nevin v. Bailey, 62 Miss. 433.

We know no reason why a court may not exclude evidence introduced by a defendant on the same grounds on which it would exclude evidence of the plaintiff.

Jonas v. Flanniken, 69 Miss. 577; Carlisle v. Yoder, 69 Miss. 384; Cole v. Coon, 70 Miss. 634; Smith v. Leavenworth, 101 Miss. 238; Littlier v. Boddie, 104 Miss. 178.

The Mississippi statute expressly provided that the taxes "shall be a charge on the land or personal property taxed, and the sale shall be a proceeding against the thing sold, and shall vest title in the purchaser, without regard to who may own the land or other property when assessed or when sold, or whether wrongfully assessed, either to a person, or to the state, or any county, city, town, or village, or subdivision of either."

Section 6886, Hemingway's Official Code of 1917, Section 3120, Code of 1930.

The three year statute of limitations was a limitation that set at rest and cured the tax title itself and did not affect the mere right of possession to the land. The occupation for three years, unless assailed by suit within that time barred not only life tenants but remaindermen, and barred these defendants.

Hazlip v. Nunnery, 29 So. 821.

The occupation and possession of Carter under his deeds extended to that not only in actual cultivation but to that over which he exercised ownership in connection with it. It also by operation of law extended to all the land within the calls of his deeds. The two deeds being taken together as the result of one transaction, the occupation under one was occupation under both.

Pearee v. Perkins, 70 Miss. 276; Brougher v. Stone, 72 Miss. 647; Butts v. Ricks, 82 Miss. 533; Dimitry v. Lewis, 150 Miss. 818; Smith v. Leavenworth, 101 Miss. 238; New Domain Oil & Gas Co. v. Gaffney Oil Co., 134 Ky. 792.

Dulaney & Bell, of Tunica, for appellees.

The two tax sales in 1921 and the two tax sales in 1930 were made under Section 6962, Hemingway's Code of 1917, the same being Chapter 199 of the Laws of 1908.

This statute appears as Section 521 of the Code of 1880, Section 3813 of the Code of 1892, Section 4328 of the Code of 1906, and Section 3249 of the Code of 1930.

The court has uniformly held that, notwithstanding the curative provisions of the statute, a tax deed is void if the collector departs from its provisions in any one of many ways, and particularly where the collector sells an entire tract of land assessed to one owner without offering it in subdivisions, adding to each subdivision an additional one until the entire amount of taxes and charges due by the owner is bid or until the entire tract is sold, or makes separate sales of parts of a tract assessed to the same owner.

Griffin v. Ellis, 63 Miss. 348; Gregory v. Brogan, 74 Miss. 694; Nelson v. Abernathy, 74 Miss. 164.

In 1917, applying the statute as it appeared in the Code of 1906 to a case where the collector had sold land in Section 26 for the taxes and charges due thereon and sold to the same purchaser adjacent land in Section 27 assessed to the same owner, the court held that these sales were void, although in each case the sale was made by offering forty acres and adding an additional subdivision.

Wilkerson v. Harrington, 115 Miss. 637, 76 So. 563.

Section 29 and the East Half of Section 30 constitute a single tract, There is no controversy as to this, and it is shown both by the plat and by the testimony of witnesses, and even in the absence of proof, the court would take judicial knowledge of the fact that the East Half of Section 30 is contiguous to Section 29 of the same township and range, and a part of the same tract.

Shivers v. Farmers Mutual Fire Ins. Co., 99 Miss. 744, 55 So. 965.

It is also uncontroverted that on the assessment roll of 1919-20, under which the East Half of Section 30 was sold to L. S. Lake for the taxes due thereon, and all of Section 29 was sold to Mrs. Dora Savage for the taxes due thereon, these lands were assessed to one owner, the estate of J. W. Bennett. It is further uncontroverted that on the assessment roll for 1927-28 the East Half of Section 30 and all of Section 29 were assessed to one person as owner, to-wit, J. T. Puckett, and that the record shows that said Section 29 was sold for the State and County taxes assessed thereon to E. B. Carter for $ 156.46, and that the East Half of said Section 30 was sold for the State and County taxes assessed thereon to E. B. Carter for $ 35.12.

At common law one claiming under a tax deed, however regular on its face, was required to support it with strict proof before it could be accepted as valid.

Minor v. President and Selectmen of Natchez, 4 S. & M. 602; Acoff v. Roman, 172 Miss. 141, 159 So. 555.

The prima facie statute is as follows: "A conveyance made by a tax collector to an individual purchaser of land at a sale for taxes, and the list of lands sold to the state at such sale, shall be prima, facie evidence that the assessment and sale of the land were legal and valid."

Section 1578, Code of 1930; Section 1643, Hemingway's Code of 1917; Sec. 1983, Code of 1906; Sec. 1806, Code of 1892; Sec. 526, Code of 1880; Sec. 1700, Code of 1871.

The court at an early date held that a tax deed was...