Gully v. J.J. Newman Lumber Co.

• Citation: 178 Miss. 312,172 So. 740
• Decision Date: 01 March 1937
• Docket Number: 32589
• Court: United States State Supreme Court of Mississippi
• Parties: GULLY, TAX COLLECTOIR, v. J. J. NEWMAN LUMBER CO

172 So. 740

178 Miss. 312

GULLY, TAX COLLECTOIR, v. J. J. NEWMAN LUMBER CO

No. 32589

Supreme Court of Mississippi

March 1, 1937

Division B

Suggestion Of Error Overruled March 29, 1937.

APPEAL from circuit court of Perry county HON. W. J. PACK, Judge.

Proceeding between J. B. Gully, State Tax Collector, and the J. J Newman Lumber Comany, in regard to the back assessment of property. From an adverse judgment of the circuit court of appeals on appeal from the holding of the board approving the assessment roll, the State Tax Collector appeals. Affirmed.

Affirmed.

E. O Fishel, of Hattiesburg, for appellant.

The title to these lands had not been accepted even by the United States Department of Agriculture until in the month of May 1934. The field examination was made by the United States Department of Agriculture on June 4, 1934, The Department of Justice approved the title by letter dated May 24, 1934, which was a letter of acceptance of the title, with the exception of one or two tracts therein excepted. The deeds were then recorded June 4, 1934. The J. J. Newman Lumber Company not receiving its pay for said lands until long after June 4, 1934.

The United States Government could acquire this land only in the manner provided by law; that is, either by condemnation or by purchase. It was attempting to acquire it by purchase and in so acquiring it, the title could only be vested in the United States in the manner provided by law and did not vest in the United States except and until the things necessary to be done as provided by United States statutes had been complied with. These statutes are found in U.S.C. A. Title 16.

The options given by J. J. Newman Lumber Company to the United States provided that the vendors were to show an established title to the above described lands satisfactory to the Attorney General of the United States, or if they did not, then in that event the United States, if deemed advisable, would institute proceedings for the condemnation of said lands. Therefore, under the law and under the contract (option), title to the lands had to be first approved by the Secretary of Agriculture and then approved by the Attorney General of the United States before title could pass.

4 Thompson on Real Property, pars. 3861, 3866.

A conditional delivery is one which passes the deed from the possession of the grantor, but is not to be completed by possession in the grantee, or a third person as his agent, until the happening of a specified event.

Bouvier's Law Dictionary, page 502; 18 C. J. page 206, sec. 105, and page 207, sec. 111.

From the foregoing authorities it is evident that the acts between Goode Montgomery and Lamar Hennington on December 28, 1933, were, so far as the grantor was concerned, only a conditional delivery, and so far as the grantee was concerned, it was only a conditional acceptance.

It is essential to the validity of a deed that there be an acceptance of the instrument by the grantee.

18 C. J. page 212, sec. 119, page 213, sec. 122, and page 214, sec. 123; Kearny v. Jeffries, 48 Miss. 343; McGehee v. White, 31 Miss. 41.

Therefore, if the title had not passed finally into the United States, and the execution and delivery of these deeds was a conditional acceptance, as is reflected by the whole record, then title to said lands was then in an individual on January 1, 1934, and the taxes for the year 1934 were a lien from and after January 1, 1934, as provided in section 3120 of the Mississippi Code of 1930.

Adams v. Lamb Fish Lbr. Co., 114 Miss. 534, 75 So. 378; State v. Dutton, Miss. 391, 78 So. 146; Wilson v. City of Lexington, 121 So. 859, 153 Miss. 212.

By section 3132 of the Code, the taxpayer is required to furnish a list of lands owned by him as of January 1st. The taxpayer did not do this.

Sections 3142, 3148, Code of 1930; Gully v. Jackson International Co., 145 So. 905, 165 Miss. 103.

It is not material to the state's right to collect back taxes, how the property happened to be omitted.

61 C. J. 174.

This record, I submit, shows that these lands belonged to appellee on January 1, 1934, and appellee could not assert an attempted assessment to the United States as being of any benefit to him. I am not unmindful of the case of Long Bell Co. v. McLendon, 127 Miss. 636, 90 So. 356, and the holding therein; but that case can and does differentiate itself from this case. There the owner of the land was claiming against the purchaser at a tax sale. The land had been assessed as "vacant" and was given no value, and the court dealt with the presumption that this meant that the Board of Supervisors had determined that the land had no value. In the case at bar, the Board of Supervisors determined no such question. If they determined any question, they merely determined that in their opinion the United States Government was the owner of the land, and therefore it was non-taxable.

The assessment rolls are only prima facie correct, and they are rebuttable.

Adams v. Clarke, 31 So. 216, 80 Miss. 134; Hillman Land & Iron Co. v. Commonwealth, 148 Ky. 331, 146 S.W. 776.

Under section 6991, in light of the foregoing authorities, I respectfully submit that this is a typical case of property escaping taxation, and one peculiarly falling within the line of duty of the State Tax Collector.

Gloster Lbr. Co. v. Adams Co., 163 So. 541, 173 Miss. 865.

Is the sovereign impotent to assess this land? Will the courts of our land say that we will open the gates of fraud, whereby any landowner, by whatever means he may get his deeds on record conveying his lands to the United States Government, can escape paying his just share of taxes, even though title still remains in him? I respectfully submit that the same should not be and that same is not the law of our land.

Lamar Hennington and Heidelberg & Roberts, all of Hattiesburg, for appellee.

The record affirmatively shows that the land in question did not belong to appellee on January 1, 1934, but that it belonged on that date to the United States of America. There were four deeds bearing date of December 26, 1933, executed by the J. J. Newman Lumber Company, a corporation, to the United States of America. These deeds were actually executed and physically delivered to the United States of America prior to January 1, 1934.

There was no evidence in this record to show that the delivery of the deed on the part of the J. J. Newman Lumber Company was a conditional delivery. But even if the delivery of the deed at the time was a conditional delivery, and even if it was not presently accepted, still, when it was accepted title passed as of the date of the deed. Title to property vests upon the delivery of a deed thereto.

Cannon v. Holburg Mercantile Co., 108 Miss. 102, 66 So. 400; Bethea v. McCullough, 70 So. 680; Rhode Island Ins. Co. v. Walden, 116 So. 693; 18 C. J., pages 197, 200, 216; Cummings v. Newell, 90 N.W. 311; Basquet v. Brown, 152 Miss. 171, 119 So. 166; Orleans v. New Orleans Land Co., 70 So. 27, 138 La. 32.

The officers of the land department are presumed to have fulfilled every requisite which the discharge of their duty demands, their proceedings are presumed regular and their decisions are not assailable collaterally.

Cunningham v. Ashley, 14 How. 377, 14 L.Ed. 462; McGovern v. New York, 234 N.Y. 377, 138 N.E. 26, 25 A. L. R. 1442.

A grant of public lands raises a presumption that every prerequisite has been performed and consequently no negligence or omission of the officers of government anterior to its emanation can affect it.

Patterson v. Jenks, 2 Pet. 216, 7 L.Ed. 402.

A patent of public lands supports a presumption that all the previous requisites of the law have been complied with.

Polk v. Wendal, 9 Cranch 87, 3 L.Ed. 665; Polk v. Wendell, 5 Wheat 293, 5 L.Ed. 92; Doe, ex dem. Patterson v. Wynn, 11 Wheat. 380, 6 L.Ed. 500; Minter v. Crommelin, 18 How. 87, 15 L.Ed. 279; Sparks v. Pierce, 115 U.S. 408, 29 L.Ed. 428; United States v. Maxwell Land Grant Co., 121 U.S. 325, 30 L.Ed. 949; Moffat v. United States, 112 U.S. 24, 28 L.Ed. 623; Colorado Coal & Iron Co. v. United States, 123 U.S. 307, 31 L.Ed. 182.

A patent is presumptive evidence that all previous steps necessary to its legal issuance were taken.

Bagnell v. Broderick, 13 Pet. 436, 10 L.Ed. 235.

The burden of proof in the trial court was on the State Tax Collector.

Whittle v. City of Hattiesburg, 132 Miss. 808, 96 So. 741; Knox v. Dantzler Lbr. Co., 148 Miss. 834, 114 So. 873; Hooper v. State, 37 So. 662.

In order to prove that the property was subject to taxation, it was essential to prove that it was property privately owned, that is to say, that title was not vested in the United States government.

Lyon Co. v. Ratliff, 129 Miss. 342, 92 So. 229.

We respectfully submit that not only was the burden not upon the J. J. Newman Lumber Company to show that the preliminary steps provided for in sections 513 to 517, inclusive, U. S. Code Annotated, Title 16, had been taken, but also the burden was not on the J. J. Newman Lumber Company to show that a deed had been executed or delivered. The burden was on the State Tax Collector to show that the property was privately owned. The State Tax Collector wholly failed to meet the burden of proof imposed upon him by law, and for that reason alone the said Tax Collector was not in the trial court and is not here entitled to prevail.

The assessment of the land in question to the United States of America as set forth in the record and in the statement of facts is res adjudicate.

George County Bridge Co. v. Catlett, 135 So. 217, 161 Miss. 120; Long-Bell Lbr. Co. v. MeLendon, 127 Miss. 636, 90 So. 356; J. B. Gully v. J. J. Newman Lbr. Co., 168 So. 258, 261.

A decision of the...