City of Biloxi v. Lowery

• Decision Date: 24 May 1937
• Docket Number: 32754
• Citation: City of Biloxi v. Lowery, 179 Miss. 364, 175 So. 200 (Miss. 1937)
• Court: Mississippi Supreme Court
• Parties: CITY OF BILOXI v. LOWERY

175 So. 200

179 Miss. 364

CITY OF BILOXI v. LOWERY

No. 32754

Supreme Court of Mississippi

May 24, 1937

Division B

Suggestion Of Error Overruled June 7, 1937.

APPEAL from the chancery court of Harrison county HON. D. M RUSSELL, Chancellor.

Suit by R. J. Lowery against the City of Biloxi and others, wherein the city filed a cross-bill. From an adverse judgment, the city appeals. Reversed and remanded.

Reversed and remanded. Suggestion of error overruled.

J. D. Stennis, Jr., of Biloxi, for appellant.

On the first assignment of error, that is, the error of the court in overruling appellant's motion to strike the bill of complaint as amended by interlineation, we submit that the order of the court allowing the amendment sustained the demurrer attached to the original answer and cross-bill.

When this motion to dismiss was filed the thirty days allowed by the order sustaining this demurrer for the amendment of the bill of complaint had lapsed. Some of the objections raised by the demurrer had been attempted to be corrected by interlineation. The order did not specify that the amendment should be by interlineation. The amendments were material amendments, and, therefore, should have been made by the filing of a new bill.

We submit that it was manifest error on the part of the trial court in admitting in evidence what purported to be a list of lands sold by the sheriff and tax collector of Harrison County, Mississippi, on September 19, 1932, to the State of Mississippi, over the objection of appellant where the list was not properly identified, where it was not shown at the time and for that matter was never shown by any record or testimony offered in evidence that there had been a failure on the part of the sheriff and tax collector to sell property, including the property here involved, on the first Monday in April, 1932, for the taxes due thereon for the year 1931, when said time is fixed by statute, Sections 3247 and 3249 of the Mississippi Code of 1930, as the only time that a legal sale could have possibly been made, without a proper showing of the failure of the tax collector to make sale at said time and a subsequent timely valid petition by the tax collector to the board of supervisors, and order by said board for sale to be made at a subsequent date, and where throughout the answer of appellant it had denied the making of a legal assessment against said property, the making of a legal report by the tax collector of his failure to sell same at the April, 1932, sales, a valid order of the board of supervisors of Harrison County for the sale at a subsequent date and a valid sale.

For the sake of argument let us admit that the sale by the sheriff and tax collector to the State of Mississippi made on September 19, 1932, for the taxes due thereon for the year 1931, of the property described in appellant's cross-bill was in all respects a legal, valid, binding sale, the appellee by his own admissions says that his patent from the State was not granted until after the statutes had been made to read that when any land is situated in a municipality and is subject to any special municipal benefit assessment which is secured by a lien on the land, such lien shall not be abated or cancelled on account of the sale of such land to the State for delinquent taxes but such lien shall be held in abeyance during the period such property is owned by the State, and immediately upon the title to the State passing from the State by virtue of a sale such lien shall again become effective.

Chapter 174, Section 17, Laws of 1936.

If the trial court, therefore, had properly rejected the record evidence with reference to the ad valorem taxes due the City of Biloxi upon said property, it would nevertheless have improperly rejected the record evidence of the special municipal benefit assessments levied against said property, and which by said act the municipality was entitled to have impressed as a lien against said property.

Appellee failed to make out a prima facie case. To have made out a prima facie case it must be presumed that the appellee offered in evidence record or documentary and oral evidence showing that the property described in the bill of complaint was sold by the sheriff and tax collector to the State of Mississippi at the time provided by law, that is, by Sections 3247 to 3249 of the Mississippi Code of 1930, that is, on the first Monday in April, 1932. The evidence introduced does not support such a presumption, or it must be presumed that the evidence introduced shows that the sheriff and tax collector reported his failure to make said sale at said time; that the board of supervisors ordered a sale made at a later date, and that all of the acts of all officers, boards, etc., having any duty to perform with reference thereto were performed in accordance with the provisions of law. The evidence introduced does not support such a presumption.

Furthermore, in a suit brought for the confirmation of a tax title claimed through a sale made at a time not expressly provided for by law the court cannot indulge in presumptions, and no matter how weak the title or claim of the appellant to the property involved may have appeared to the court, since appellant had denied that there had been a proper assessment, sale and report, it was incumbent upon the appellee to do more than make out a statutory prima facie case by the introduction of what purports to be a list of lands sold to the State of Mississippi on the "first Monday, the 19th day of September 1932." Section 3256 of the Mississippi Code of 1930 requires this list to be made up and filed on or before the first Monday in June. There is nothing in evidence to show why it was filed in September, unless we deal entirely with presumptions and presume that there were report, order and sale subsequent to the first Monday in April, 1932. But going back to the assessment of this property the appellant had denied the validity of same, and regardless of the prima facie statute this court held in the case of Henderson Molpus Co. v. Gammill, 115 So. 716, 149 Miss. 576, where the proceedings approving the assessment roll were void, the owner of the record title could have the tax collector's deed cancelled; and in the case of Cuevas v. Cuevas, 110 So. 865, 145 Miss. 456, that the purchaser acquired no title where the board in attempting to fix the date of tax sale in July, 1922, ordered the sale for July, 1921; and in the case of Hunter v. Bennett, 115 So. 204, 149 Miss. 368, that where the assessor failed to file the assessment roll within the time prescribed made the roll void, the tax sale based on such roll was void; and in the case of Cameron v. Whittington McGehee, 82 So. 311, 120 Miss. 595, that Section 4303 of the Code of 1906 requiring the assessor among other things when he files his roll to publish notice thereof and the date of the meeting of the board to consider the same, is mandatory, and in the absence of such notice the collector cannot make a valid sale of the land for default in payment; and in the case of McCord v. Shaw, 27 So. 602, 77 Miss. 900, that where an assessment roll was not filed with the clerk of the Board of Supervisors until September, a sale of real property for taxes levied under said assessment was invalid; and in the case of Carlisle v. Chrestman, 12 So. 257, 69 Miss. 392, that the failure to return an assessment roll within the time allowed by law invalidates a sale made thereunder; and in the case of Womack v. Central Lumber Co., 94 So. 2, 131 Miss. 201, that where Section 4328 of the Code of 1906, Section 6962 of Hemingway's Code, providing that no tax title shall be invalidated for error in conducting the sale; and Section 4332 of the Code of 1906, being Section 6966 of Hemingway's Code, providing that no tax title shall be invalidated except by proof that the land was not liable for sale for taxes, or that the taxes thereon had been paid, or the sale had been made at the wrong time and place; these sections were not applicable to a tax sale where there was a total departure from the statutes prescribing the fundamentals of the assessments and sale.

It is passingly strange that the appellee, in view of the denial of a proper assessment and sale, did not offer in evidence the assessment roll, the report of the tax collector to the board of supervisors that a sale had not been made of the property involved in April, 1932, and an order of the board of supervisors authorizing said sale in September, 1932. The validity of such documents had been denied, if such documents existed, and since it appears from the record that much is left to presumptions it must be presumed that there were reasons why the appellee did not want these records before the court.

Lamar Life Ins. Co. v. Billups, 169 So. 32, 195 Miss. 771.

This court has on numerous occasions held that a party suing to confirm title or cancel adverse claims thereto must plead and prove a perfect legal and equitable title in himself. He cannot rely upon the weakness of his adversary's title.

Acoff v. Roman, 159 So. 555, 172 Miss. 141; Peterson v. Kittredge, 65 Miss. 33, 3 So. 65, 5 So. 824; Metcalf v. Wise, 159 Miss. 541, 132 So. 102; Hunter v. Bennett, 149 Miss. 368, 115 So. 204; Lyon Co. v. Ratliff, 129 Miss. 342, 92 So. 229.

We therefore respectfully submit to the court that there is not one iota of evidence in support of the legality of the sale made by the sheriff and tax collector in September, 1932 that the appellant having denied the legality of same it was incumbent upon the appellee to prove, if possible, that the acts of the tax assessor, sheriff and tax collector, and board of supervisors were in all things done strictly in accordance with the provisions of law; that the...