Central Trust Co. of Illinois v. Haynes

• Decision Date: 11 October 1915
• Docket Number: 17046
• Citation: 110 Miss. 119,69 So. 663
• Court: Mississippi Supreme Court
• Parties: CENTRAL TRUST CO. OF ILLINOIS ET AL. v. HAYNES

69 So. 663

110 Miss. 119

CENTRAL TRUST CO. OF ILLINOIS ET AL. v. HAYNES

No. 17046

Supreme Court of Mississippi

October 11, 1915

APPEAL from the chancery court of Lamar county. HON. R. E. SHEEBY Chancellor.

Bill by Mrs. W. P. Haynes against the Central Trust Company of Illinois and others. Demurrer to bill overruled and defendants appeal.

Appellee filed her bill in the chancery court of Lamar county against Camp & Hinton Company, the Central Trust Company of Illinois and A. Uhrlaub as defendants, alleging that she was the legal owner of the land in controversy, having purchased same from one Whitsett, who had purchased it at a tax sale. The bill is for the purpose of quieting her title and cancelling the claim of the defendants herein to the property; it being alleged that the Camp & Hinton Company was claiming title to the land, and that it had executed a deed of trust to the Central Trust Company, Uhrlaub being named as trustee. The bill alleges, after deraigning the title, that said property was duly and legally assessed on the assessment roll of said county for taxes due the county and state for the fiscal year of 1906 to an unknown owner, and that, the taxes thereon having become delinquent, and the tax collector of said county having failed to sell said lands for said delinquent taxes for said year on the date designated by the statute and having reported said failure to the board of supervisors said board, by order entered on the minutes, directed the sheriff to make said sale on the 6th day of May, 1907, and that, after due advertisement according to the law, the tax collector proceeded to make the sale on the date mentioned when Whitsett became the highest and best bidder, and the lands were struck off to him, and that the tax collector executed a deed conveying said land to said Whitsett, which deed remained on file for more than two years with the chancery clerk of said county, and that after the expiration of two years, to wit, on the 7th day of May, 1909, the chancery clerk delivered sale deed to said Whitsett upon payment of all charges, and that the title to said land thereby became vested in said Whitsett, from whom appellee acquired title.

The appellants demurred to the bill upon the following grounds:

First. That there was no equity in the bill.

Second. That the bill showed on its face that the sale was void and did not convey title. Upon this ground it is contended that appellee does not show that there was a valid assessment, or a lawful levy of taxes, or a legal sale, but that the allegation in the bill is a mere conclusion of the pleader. In reply to which contention appellee cites section 1983 of the Code of 1906, which provides that:

"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."

Third. That the sale was made upon a day other than that fixed by the statute. In response to this contention appellee cites section 4367 of the Code of 1906 which provides that:

"If from any cause a sale of . . . land for taxes which is liable to such sale shall not be made at the time appointed by law for such sale, it may be sold thereafter, in the same or a subsequent year, at any time designated therefor by order of the board of supervisors."

Appellee also cites section 4332 of the Code of 1906, which provides that:

"Which conveyance shall vest in the purchaser a perfect title to the land sold for taxes, subject to the right of redemption; and no such conveyance shall be invalidated in any court except by proof that the land was not liable to sale for the taxes, or that the taxes for which the land was sold had been paid before sale, or that the sale had been made at the wrong time or place. . ."

Affirmed.

W. A. Shipman, for appellants.

In the matter of a sale for taxes, three things are necessary to be alleged and proven: First, a valid assessment; second, a lawful levy, and third, a legal sale.

"A levy of a tax is absolutely indispensable to create a legal obligation to pay it. A tax must be due and unpaid; and this case of taxation of property can only be shown by proof that the property was assessed, listed and valued, and that the tax was in fact, levied by competent authority." See Adams Rev. Agt. v. Bank, 74 Miss. 316. See, also, Virden v. Bowers, 55 Miss. .

Complainant's allegation "that the taxes both for state and county for the fiscal year of 1906 was due, owing and unpaid by defendants or any other person on or before the sixth day of May, 1907, and that said taxes became delinquent and were a charge and a lien against said land according to the laws of the state of Mississippi" is another conclusion of law on the part of the pleader. Having failed to set out any levy of taxes, legal or illegal for the year of 1906, the complainant cannot by mere allegation or conclusion of law, avail himself thereof, without a statement of facts going to establish the conclusion that the taxes were due and unpaid, and that such were a charge and a lien against the land by setting out that all necessary conditions precedent thereto, had in fact been complied with in the manner required by law. The cases of Grayson v. Richardson, 65 Miss. 222 and Morgan v. Blewitt, 72 Miss. 903, are not in point; for what was held by the court in each of these two cases was that "where there is no evidence as to when an assessment roll was presented to the clerk, the presumption will be indulged that it was delivered at the proper time." In the instant case that presumption cannot be indulged, for the simple reason that there is no showing on the face of the bill of complaint that any assessment roll was ever, at any time, either presented by the assessor or approved by the board of supervisors, and further there is not the slightest intimation that a levy was ever made.

The complainant in the fourth paragraph of her complaint alleges that the tax collector having failed to sell lands for which taxes were delinquent for said fiscal year on the date designated by statute and having reported said failure to the board of supervisors, the board, by an order "duly" entered on the minutes ordered that the sale take place on the first Monday in May, 1907, being the sixth day thereof.

This allegation is but another conclusion of the pleader. Neither the minute book, nor page, nor date of the order is given; no reference thereto, or leave to refer to such records for the purpose of the suit is prayed. No facts are stated upon which the pleader predicates the allegation, that an order was "duly" entered on the minutes.

"In a proceeding by mandamus to compel a court to decree the result of an election, an averment that the election was "duly" held, is a conclusion of law. See State v. Malheur County Court, 46 Ore. 519, 81 P. 368.

This allegation, therefore, raises no issue, need not be denied, and the truth of it is not admitted by the demurrer to the bill of complaint containing it. See Kittenger v. Traction Co. supra and other authorities cited.

In like manner the allegation contained in the fifth paragraph of the bill, that the lands were "duly and legally" advertised in a newspaper published in the county and that the tax collector, did at the time advertise and as provided by law and the order of said board of supervisors offer for sale and did sell the said lands, etc., is tainted with the same fault. There is no reference to any records but the mere statement of the pleader that such things were done. The name of the newspaper is not given. No copy of such advertisement is exhibited to the bill, and no reference to the amount paid by the complainant at such sale for the land. Nothing to show or indicate that the tax collector offered the land in forty-acre tracts, or that the sale was "duly and legally" conducted, save the mere conclusion of the pleader.

"A tax sale made on a day other than that provided by the statute confers no title." McGehee v. Martin, 53 Miss. 519; Harkreader v. Clayton, 56 Miss. 394.

It was, however, insisted by counsel for complainant in the lower court, that under the provisions of sections 2935 and 4367, Code of 1906, which provides the mode for selling lands not sold at the regular time, the rule stated in the two cases last cited was inapplicable to the present case, and that it falls within the provisions of those two sections of the Code. In Brougher v. Conley, 62 Miss. 358, the court by Chief Justice CAMPBELL said: If after the time fixed by law for the sale of land for taxes it appears that any land liable to such sale was not sold, as it should have been, it may be sold by order of the board." And further construing the statute, the learned Chief Justice said: "This section sprang from the apprehension, that by inadvertence or oversight, some land might escape sale at the regular time, and was intended especially for such cases. Its language is broad enough to embrace a failure as to the entire list of delinquent lands, and when it appeared at a time subsequent to the time fixed by law for the sale of land for taxes that no sale had been made, from any cause, it would be competent and proper for the board of supervisors, under this section, to order the sale to be made at a future date; but this is very different from granting an indulgence beforehand.

"A tax collector who fails to advertise and sell lands delinquent for taxes at the time prescribed by law can obtain no relief from responsibility by an order of a board of supervisors, which cannot thus thwart the law."

In the Brougher case it appears affirmatively that the order of the board was made on the first Monday in March, which...