City of Meridian v. Phillips

• Decision Date: 16 April 1888
• Citation: 4 So. 119,65 Miss. 362
• Court: Mississippi Supreme Court
• Parties: CITY OF MERIDIAN v. J. M. PHILLIPS

4 So. 119

65 Miss. 362

CITY OF MERIDIAN v. J. M. PHILLIPS

Supreme Court of Mississippi

April 16, 1888

APPEAL from the Circuit Court of Lauderdale County, HON. S. H TERRAL, Judge.

In 1883 the city of Meridian purchased a tract of forty acres of land near its limits, and erected thereon a few small houses to be used as pest houses. This land was duly assessed to said city, the assessment was approved by the board of supervisors without objection, and in March, 1886, the land was sold to the State for the unpaid taxes of 1885. In 1887 it was purchased from the State by J. M. Phillips, who brought this action of ejectment to recover possession thereof. The city defended on the ground that the land and was not subject to taxation, and hence, the State acquired no title by the sale for taxes and could convey none to the plaintiff. There was a judgment in the court below in favor of the plaintiff Phillips. The defendant appealed.

Judgment reversed.

Woods &amp Williams, for the appellant.

There are two questions raised by the record in this case:

1st. Whether or not the property sold for taxes was exempt from taxation.

2d. Whether or not the assessment and sale of exempt-property for taxes passes any title to the purchaser at such a sale.

We say that the first question must be answered in the affirmative. The language of Sec. 468, Code 1880, would seem to settle this question without argument.

If we are correct in our conclusion that the property was exempt then the land was not liable to sale for taxes.

We ask the attention of the court to the following authorities:

Blackwell on Tax Titles, star page 406, we have the following: "The fact that the land is subject to taxation is the basis of the power to sell it in case the owner proves delinquent. If the sovereign power of taxation has never attached to the land, or having once legally attached, the land is exempted from the operation of the taxing power, then it cannot be sold. A sale under such circumstances is void to all intents and purposes. The owner is not bound to enjoin the sale of his land under such circumstances, or resort to his remedy against the officers, but may contest the validity of the sale whenever the purchaser or his grantor attempts to recover the possession or establish his title to the land."

To the same point see Cooley on Taxation, page 469, where he says: "If by law they were exempt from taxation, a sale will be void for a tax actually assessed."

To the same effect is Sec. 116, Black. on Tax Titles; Treat v. Lawrence, 42 Wisconsin, 330; Taylor v. Miles, 7 Am. Rept., 558. In the last case the court uses the following language: "It is claimed by the plaintiff in error that the only defenses that the defendant can set up to this action are: That he paid the taxes, or redeemed his land from sale for taxes. Now suppose this is all true, can a single cent of tax upon this land be pointed out that the defendant has not paid? And here we must say that we suppose that the word 'tax or taxes,' in the statute, cannot mean something that is beyond the power of the Legislature to impose, and something that this land could not possibly be liable for. The defendant may well plead that he has paid every tax that has ever been due upon his land; and as he has done so it would be grossly unjust that he should forfeit his land for a pretended tax that was never due upon the same."

We think the case of Horne v. Greene, 52 Miss. 456, decisive of this point in our favor.

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