Gordon v. Smith

• Decision Date: 10 June 1929
• Docket Number: 27640
• Citation: 154 Miss. 787,122 So. 762
• Court: Mississippi Supreme Court
• Parties: GORDON et al. v. SMITH

122 So. 762

154 Miss. 787

GORDON et al. v. SMITH

No. 27640

Supreme Court of Mississippi

June 10, 1929

APPEAL from chancery court of First district, Hinds county, HON. V J. STRICKER, Chancellor.

(In Banc.)

1 TAXATION. Assessment held void, where fact that notice had been given to taxpayers did not appear on minutes of board of supervisors (Code 1906, section 4303).

Assessment of property for taxes held void, where fact that notice had been given to taxpayers of filing of assessment rolls and date of meeting of board to consider them, as required by Code 1906, section 4303, did not appear on minutes of board of supervisors.

2. EVIDENCE. Under curative statute relating to approval of assessments, it could not be shown assessment was made according to law, where fact that notice had been given to taxpayers did not appear on minutes (Hemingway's Code 1927, section 8227; Code 1906, section 4303).

That assessment was in all respects, except entry on minutes of board of supervisors of final order approving rolls under Hemingway's Code 1927, section 8227 (Code 1906, section 4305), made according to law, could not be shown by parol evidence or documentary evidence aliunde the record under Hemingway's Code 1927, section 8828 (Code 1906, section 4306), providing that failure of board to enter order approving assessment would not vitiate assessment if it appeared assessment was made according to law, where fact that notice had been given to taxpayers of filing of assessment rolls and date of meeting to consider them, as required by Code 1906, section 4303, did not appear on minutes.

3 COUNTIES. Board of supervisors can only act through orders entered on minutes.

County board of supervisors can only act by or through orders entered on its minutes.

SMITH C. J., and ANDERSON, J., dissenting.

HON. v. J. STRICKER, Chancellor.

APPEAL from chancery court of First district, Hinds county, HON. V. J. STRICKER, Chancellor.

Suit by Mrs. G. P. Smith against W. S. Gordon and others. From a decree for complainant, defendants appeal. Affirmed.

Decree affirmed.

Franklin, Easterling & Fox, of Jackson, for appellants.

Where an assessment for taxes was made under section 4306 of the Code of 1906 according to the law existing at that time, the minutes of the board of supervisors did not have to show its approval, but it could be shown by parole evidence aliunde the record that the roll was legal and the required notice by the assessor given.

Williams v. Cammack, 27 Miss. 209, 61 Am. Dec. 508; 3 Phill. Ev. (2 Ed.), Cowen & Hill's notes, 906; Rex v. All Saints, 1 Man. & Ry. 668; Rex v. Hulcott, 6 T. R. 583; Briggins v. Chandler, 60 Miss. 862; Turney v. Brown, 65 Miss. 563, 7 A. S. R. 679; State v. Wyoming Mfg. Co., 103 So. 11; Henderson-Molpus, Co. v. Gammill, 115 So. 716; Barrington v. Rose, 90 So. 633; Smythe v. Whitehead, 133 Miss. 184, 97 So. 529; Cameron v. Whittington, 120 Miss. 595; Herndon v. Mayfield, 79 Miss. 533, 31 So. 103.

Under section 1983, Code 1906, Hemingway's Code 1927, section 713, a conveyance by a tax collector to an individual purchaser of land at a sale for taxes and a list of lands sold to the state at such sale, shall be prima-facie evidence that the assessment and sale of the land was legal and valid and the burden of proof is on the party attacking such sale.

Mixon v. Clivenger, 74 Miss. 67, 20 So. 148; Coffee v. Coleman, 85 Miss. 14, 37 So. 499; Aultman v. Fleming, 113 So. 201; State v. Wyoming Mfg. Co., 138 Miss. 249, 103 So. 12, 113 So. 201; Price v. Harley, 107 So. 673; Tarpley v. Hamer, 9 S. & M. 310.

Robertson & Campbell, of Jackson, for appellee.

An assessment for taxes is void where the fact that notice has been given to taxpayers did not appear on the minutes of the board of supervisors.

Code of 1906, sec. 4303; Henderson Molpus Co. v. Gammill (Miss.), 115 So. 716; Board of Supervisors of Lowndes County v. Ottley et al. (Miss.), 112 So. 466; Aden v. Board of Supervisors of Issaquena County (Miss.), 107 So. 753; Henry v. Board of Supervisors of Sunflower County (Miss.), 71 So. 742; State v. Wyoming Manufacturing Co., 138 Miss. 249, 103 So. 11; Aultman Fleming (Miss.), 113 So. 201.

COOK, J. SMITH, C. J. and Judge ANDERSON, dissenting.

OPINION

COOK, J.

The appellee, Mrs. G. P. Smith, as the sole devisee under the last will and testament of her husband, G. P. Smith, deceased, filed a bill of complaint in the chancery court of the First district of Hinds county against W. S. Gordon, the Belhaven Heights Company, and the Merchants' Bank & Trust Company, seeking to cancel their claims to lot 10 of block 13 of Belhaven Heights, of Jackson, Miss., which said lot had been sold on the first Monday of April, 1911, for the state and county taxes due thereon for the year 1910. A demurrer was interposed to the original bill, and thereupon the appellee filed an amended bill. The appellants filed an answer and cross-bill, and the cause was heard on the pleadings and proof, and a final decree was entered in favor of appellee holding that the assessment of said property for taxes for the years 1909 and 1910 was void, and canceling the purported tax collector's deed to the purchaser of said lot at said sale, and also canceling subsequent conveyances to appellants which were based upon this tax title; and from the decree so entered, this appeal was prosecuted.

After setting forth in detail the appellee's claim of title to said lot through a deed to her husband made in 1905, and through his last will and testament which had been duly probated in the chancery court of Forrest county, the bill of complaint charged that the tax collector of Hinds county undertook to sell said lot for the taxes due and delinquent thereon for the fiscal year 1910 under and pursuant to an assessment of the lands of Hinds county made in 1909, and under and pursuant to a levy of taxes made under said assessment for the fiscal year 1910; that on the first Monday of April, 1911, the said tax collector executed an alleged deed by which he attempted to sell and convey said land to the purchaser thereof at said tax sale; that on February 24, 1924, the grantee in said tax deed executed a quitclaim deed purporting to convey the land to the appellant W. S. Gordon; and thereafter the appellant Gordon attempted to convey to each of the other appellants an interest in the land.

The bill of complaint then charged that section 4303, Code 1906, which was in force and effect at the time of said assessment and sale for taxes, required that when the assessor returned and filed the assessment roll in the office of the clerk of the board of supervisors, he should give notice thereof and of the date of the meeting of the board of supervisors to consider the same, by publication in some newspaper published in the county, or if there be none, then by posting at the courthouse for three weeks, and provided that this notice or publication should be notice to all persons of the fact and of the contents of the roll so filed; and that all persons should be held to have notice of the time within which to file objections to the assessment and of the time when the board of supervisors would hear the same, and of its power to raise assessments thereat.

The bill of complaint then charged that it was the duty of the assessor to prepare and file the land assessment rolls for the years 1909 and 1910 and to give the notice required by section 4303, Code 1906, and that "all the acts of the Assessor in making, returning and filing of the said land assessment roll, and all the acts of the board of supervisors in equalizing, approving and confirming the said Land Assessment Roll for the years 1909 and 1910, are void and of no effect; because it does not appear from the record of the proceedings of the board of supervisors of Hinds county that any publication of notice by the Assessor as required by said section 4303 of Mississippi Code of 1906, was ever made, nor does the record of said proceedings show that any proof of publication of the said notice was ever made or filed with the clerk of the board of supervisors."

Certified copies of certain orders and proceedings of the board of supervisors touching the equalization, approval, or confirmation of the assessment rolls, real and personal, for the years 1909 and 1910, were attached to the bill as an exhibit thereto; and it was charged that the said orders of the board contained in this exhibit were "all the orders that were made and entered by the board of supervisors in that matter, and that no proof of publication of either of the notices, as required by statute, was ever made or filed with the clerk of the board of supervisors, and therefore the assessment of lands in Hinds county for the years 1909 and 1910 are wholly void;" and that, consequently, the said assessment and sale and conveyance thereunder, as well as subsequent sales and conveyances to parties claiming under and through the purchaser at this tax sale, were void. The bill prayed that the said tax collector's deed to R. L. Hogue, the purchaser of said lot at said sale, and the subsequent conveyances to the appellant, be canceled.

The appellants filed an answer denying all the averments of the bill of complaint which challenged the validity of said tax collector's deed, and particularly denying that the said assessment roll was void for any of the reasons assigned, or that the appellee was entitled to the relief prayed for, or any relief whatever, and, by way of cross-bill, prayed that if, for any reason, the said tax deed should be held to be void, then they be allowed to recover all taxes paid thereon since the date of said sale, with interest, damages, and costs.

At the trial of the cause, the orders of the board of supervisors...