Davis v. City of Biloxi

• Decision Date: 24 October 1938
• Docket Number: 33357
• Citation: 183 Miss. 340,184 So. 76
• Court: Mississippi Supreme Court
• Parties: DAVIS et al. v. CITY OF BILOXI

184 So. 76

183 Miss. 340

DAVIS et al. v. CITY OF BILOXI

No. 33357

Supreme Court of Mississippi, Division B

October 24, 1938

(Division B.)

TAXATION.

The acquirement of title to realty by city for school purposes extinguished assessments against land, so that subsequent sale for taxes by sheriff and tax collector of county to state, which patented the land to individual, was ineffective, notwithstanding that city had not recorded its deed.

HON. D M. RUSSELL, Chancellor.

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

Suit by the City of Biloxi against Britt Davis and others to enjoin the sale of lands, which the plaintiff claimed. From a judgment in favor of the plaintiff, the defendant appeals. Judgment affirmed.

Affirmed.

Howie Howie & McGowan, of Jackson, for appellants.

So far as our own laws are concerned, statutory and by judicial determination, this appellee can only rely upon two decisions of this Honorable Court. The first is the case of the City of Laurel v. Weems, 100 Miss. 335, 56 So. 451; and Alvis v. Hicks, 150 Miss. 306, 116 So. 612.

As we view it, these decisions mean exactly the same thing. If a municipality procures a perfected record title to real property after the tax lien of the state attaches and before sale, then the state's lien will be absolved. This being accomplished, of course, by a pure dispensation of the sovereign.

This Honorable Court in its decisions heretofore handed down has determined that it is the better principle that the state will forgo and dispense with its lien if a municipality procures the property and a completed record title thereto before the state sells the property. We respectfully submit that this principle, which in our jurisdiction has been carried fully as far as in any other jurisdiction in the country, should not be further extended. As will be hereinafter more fully set out, in some states the courts have flatly refused to remove the State's lien after it has attached the property, although a municipality may acquire it by record title. However, frankly, the prevailing rule seems to be that where the assessing machinery is in an inceptive state, that is to say, where the rolls have not been completed and delivered, the state will forego its lien if the city acquires title, but the prevailing sentiment is that where the rolls have been completed, finally approved and turned over to the tax gathering officer, the lien will not be absolved.

Gachet v. City of New Orleans, 27 So. 348; Prytania Street Market Co., Ltd., v. City of New Orleans, 34 So. 797; City of Jackson v. Howie, 175 So. 198.

The municipality must, of course, have a perfect title. We do not think that it is reasonable that this court would determine for a moment that a municipality relying upon a series of secret and unrecorded deeds in a foreign state could ever say that it had a perfect title.

Glen R. Charles, the record owner of this property, as well as the Keeneys, resided in a foreign state, that is to say in the City of Chicago and state of Illinois. They all resided there at the time these deeds were supposed to have been exchanged between them. It is certain that the passing deeds between non-residents of the State of Mississippi in a foreign and distant state would not have any bearing on the ownership of the property in this state, especially as to defeat the rights of the lien or title of the State of Mississippi to the property.

Meridian v. Phillips, 65 Miss. 362, 4 So. 119; Moores v. Thomas, 95 Miss. 644, 48 So. 1025; Steiff v. Tait, 26 F.2d 489; State Trust Co. v. Chehalis County, 79 F. 282.

It appears that practically universally where the courts give way to the right of municipalities which procure lands during the progress of the current assessment the forbearance only extends to instances where the city procures before the assessing machinery is completed.

There are some jurisdictions in which the courts flatly refuse to absolve the state's lien whether the assessment roll has been completed or not.

Triangle Land Co. v. City of Detroit, 204 Mich. 444, 170 N.W. 549; Iron Mt. Public School v. O'Conner, 143 Mich. 35; Cooley on Taxation (3d Ed.), page 380; Sisters of the Poor v. New York, 51 Hun. (N.Y.) 355.

If the land, is duly assessed to the owner of record, the title of the tax purchaser will prevail against the holder of an unrecorded deed from such former owner. Provided, the tax purchaser had no notice or knowledge of such deeds or facts which should have put him upon inquiry.

61 C. J. 1309, sec. 1829; Robertson v. Puffer Mfg. Co., 73 So. 804, 112 Miss. 890; Augusti v. Citizens Bank, 15 So. 74.

No one, including a municipality, should be permitted to hold deeds off the record for years until an assessment is made, and sale made thereunder, and the title practically matured in the state before they come forward with their claim. Especially would it be untenable where they are relying not upon one unrecorded deed but upon a series of unrecorded deeds, one based upon the other, and especially, as we have stressed hereinbefore, where the transactions took place in a foreign state.

The tax title in Mississippi is a perfect title. It is a perfect fee simple title and indefeasible so. far as any collateral attack is concerned.

Section 3011, Code of 1930.

After property is sold the absolute title vests in the state or in the individual unless there is a defect somewhere in the assessing machinery or in the sale of the property; or unless, of course, the records in the county show the property is exempt property. There is no attack here upon the regularity of the sale, and as we insist, the City of Biloxi, appellee, never acquired any title whatsoever to this land until May, 1936, some years and eight months after the absolute title to it has passed to the state. That which the owner, Glen R. Charles, conveyed to the city at that time was not a title but a bare equity of redemption, if anything.

In Mississippi tax titles are absolute titles, and are not what is referred to in some jurisdictions as derivative titles. To show a perfect paramount fee simple title under a tax claim in Mississippi one is only required to show two things: first, that the property was aliened by the United States government and subject to taxation; second, a valid assessment and sale for taxes. This record discloses both of these and shows such a title in the complainant.

Griffith Chancery Practice, sec. 219; 26 R. C. L., sec. 360, Taxation.

The efforts of this appellee by recording a deed during the summer of 1934 which bore date from the summer of 1932, and which they claim was based upon another instrument executed in the fall of 1931, which was never recorded, constitute the barest and thinest kind of an equitable claim to this land. As we view it, the record title is not only the better legal title but the only title in this controversy. Appellees in vainly striving to fabricate a title out of a succession of unrecorded deeds certainly could not obtain more than equitable rights.

Chiles v. Gallagher, 67 Miss. 413, 7 So. 208.

We call the attention of the court to Chapter 280, Laws of 1936, which amends Section 2588, Code of 1930. By this act the legislature made subject to taxation all property which municipalities acquire by tax sales. We also call the court's attention to Section 13, Chapter 174, Laws of 1936, which provides that land purchased by drainage districts or municipalities from the State Land Office shall be liable for state and county taxes. Looking to the legislative intent with reference to property held by municipalities it certainly cannot be said that there is present evidence to extend further freedom from taxation to the municipalities. We mention these statutes merely for the purpose of urging upon the court that the doctrine as laid down in the Laurel case and the case of Alvis v. Hicks, (both above) should not be further extended, and any further extension thereof cannot be justified by legislative intent.

White & Morse, of Gulfport, for appellants.

The lower court based its decree on Weems v. City of Laurel, 100 Miss. 335, and in a measure upon Alvis v. City of Jackson, 150 Miss. 306. There is, we submit, a clear distinction between these cases and the case at bar, because the recording statutes were compiled with the Alvis v. City of Jackson and Weems v. City of Laurel cases. The record owner was conveying and the deeds were recorded.

A city, like a county board of supervisors, can act only by and through its minutes. The city at no time by ordinance or minute entry accepted the deeds or any of them, or the land, and now, if sued by some one for a defect in the premises, could defend upon the ground it is not the owner of the land.

Sections 2543, 2545, Code of 1930.

The record of the proceedings of a municipal body on which the members are required to vote is the only competent evidence of any act or proceeding of the body.

Byer v. Town of New Castle, 24 N.E. 578.

It is essential to validity of an ordinance that the vote on its passage be taken and recorded.

Schofield v. Tampico, 98 Ill.App. 324.

The record of the passage of an ordinance should set forth the yeas and nays. No other legal way exists for determining whether a majority has voted.

McCormick v. Bay City, 23 Mich. 457; Dean v. Senatobia, 142 Miss. 815.

Since a municipal council can speak only through its records, it should keep a correct record of its proceedings, and statutes imposing this duty are mandatory.

43 C. J. 513; Ross v. Wimberly, 60 Miss. 345; Campbell v. Hackensack, 98 A.L.R. 1225; 43 C. J. 516; Abbott Municipal Corporation, page 1444.

This court has recently rendered an original opinion, and a later...