Hunter v. Bennett

• Decision Date: 16 January 1928
• Docket Number: 25509
• Court: Mississippi Supreme Court
• Parties: HUNTER v. BENNETT et al. [*]

115 So. 204

149 Miss. 368

HUNTER v. BENNETT et al. ^[*]

No. 25509

Supreme Court of Mississippi

January 16, 1928

Division A

APPEAL from chancery court of Coahoma county, Second district. HON C. L. LOMAX, Chancellor.

Suit to quiet title by C. W. Hunter against O. A Bennett and others. Plaintiff's bill was dismissed, and he appeals. Affirmed.

Affirmed.

Watson & Jayne, for appellant.

The courts have construed section 1643, Hemingway's Code many times and held that the presumption therein provided applied to the filing of a deed by the tax collector as required by law. Wheller v. Ligon, 62 Miss. 560. That the prima-facie character of the deed was not disturbed by the statement of the tax collector that "he did not see how he could have sold the tract of land at tax sale in the smallest subdivisions as required by law, unless he had a map of it, and that he did not remember to have had a map." Mixon v. Clevinger, 74 Miss. 67, 20 So. 148. That the prima-facie case provided by the statute was not overcome where the minutes of the board of supervisors have been destroyed, in part, by showing that the remaining portion shows no approval. Herndon v. Mayfield, 79 Miss 533, 31 So. 103. An allegation in the bill alleging a sale, and that the list of lands sold to the state at the time of the sale shows such a sale, and making the tax collector's deed an exhibit, make a case under the prima-facie character. Smith v. Denny, 90 Miss. 434, 43 So. 479.

As to filing and approval of assessment roll of 1892 it is submitted that the contention of the appellees, based on the cases used by them below, to-wit: Harris v. State, 72 Miss. 960, 1 So. 387, and Sexton v. Coahoma County, 86 Miss. 380, 38 So. 636, and the other cases cited in the brief invoke far too narrow a rule of construction. The broader rule adopted in Johnson v. Board of Supervisors, 113 Miss. 435, 74 So. 321, should be followed. Besides this, the very assessment roll in question in this cause, that of 1892, was held valid in the case of Y. D. Investment v. Suddoth, 70 Miss. 416, 12 So. 247.

As to presumption of validity of assessment roll, see section 3782, Code of 1892, brought forward from section 499, Code of 1880; section 3780, Code 1892 (section 500, Code of 1880). Section 3784 provides that the board of supervisors may extend the time for the making of the roll. By section 3787 failure to object to the roll precludes all persons from questioning its validity after its approval by the board of supervisors, or by operation of law. Section 3789 provides that if at the July meeting of the board of supervisors the completion of the assessment be extended until the first Monday in August, then the board shall perform the duties required of it by section 3788 at its meeting on the first Monday in September.

Under the facts, appellant earnestly urges that the application of section 3783, Code of 1892, effectively cures the objections made to the assessment roll of 1892, and that the evidence does not vitiate this assessment roll. This very assessment roll came in question in the case of Y. D. Investment Company v. Suddoth, 12 So. 246, and on pages 247 and 248, the court held that sections 80, 3788, 3791 and 3792, Code of 1892, mapped out the course to be pursued in the making up and approval of the assessment roll, and the assessment roll was held valid, notwithstanding the board of supervisors had approved the roll as altered. That unless an objection was made and an appeal prosecuted from the assessment, as approved, the defendant was concluded by the roll as approved by the board. Appellee below relied on Womack v. Central Lumber Company, 131 Miss. 24, 94 So. 2. Appellant contends that this case does not conflict with the rule contended for by appellant. While the holding in Stovall v. Conner, 58 Miss. 138, is to the effect that a tax sale is invalid when the assessment roll was not returned within the time prescribed by law, that decision rested on the law as it existed prior to the Code of 1880, and section 500 of the Code of 1880 (section 3783, Code of 1892), provided that the failure of the assessor to return his roll on the day named by the board of supervisors was enacted for the purpose of curing the very defect in assessment rolls condemned in Stovall v. Conner. The fact that the assessment roll of 1892 is partially mutilated, by having eleven pages cut out of it immediately after the recapitulation, and where ought to follow the oath of the assessor and the time of the filing of the roll, as above pointed out, makes an incomplete record of the making up of the roll, from and out of which the court cannot say that it speaks for itself, and does not show that it was filed in time. Herndon v. Mayfield, 31 So. 104.

Maynard, FitzGerald & Venable, for appellees.

This is a suit brought by complainant to confirm and quiet his title and to cancel the claim of title of defendants to said land. There is no difference of opinion between complainant's attorneys and defendants' attorneys that the settled law of Mississippi is, in cases of this character, complainant must recover, if at all, upon the strength of his own title, whether the defendants have title or not. Hart v. Bloomfield, 66 Miss. 100; Hale v. Neilson, 112 Miss. 291; Gilchrist-Fordney Co. v. Keyes et al., 113 Miss. 742. The complainant claims title under three tax sales, one made to the State of Mississippi by the tax collector in March, 1893, and two made by the tax collector to Jennie Oliver on April 6, 1914. "In a suit to confirm a tax title, the burden is upon the complainant to establish the validity of his own title for confirmation before the title of the defendant can come in question." Robert v. Lewis, 119 Miss. 628. See, also, Eastman-Gardner Co. v. Barnes, 95 Miss. 721; Mayson v. Banks, 59 Miss. 447; Clymer v. Cameron, 55 Miss. 593; and other authorities cited under section 6965, Hemingway's Code.

The minutes alone must show what action the board of supervisors, whose jurisdiction is limited, took when they found the assessor had failed to return the roll as required by law. Root v. McFerriss, 37 Miss. ; Bolivar v. Coleman, 71 Miss. 832; Lester v. Miller, 76 Miss. 309. See as to assessment roll, Womack v. Central Lumber Co., 131 Miss. 214; Smith v. Nelson, 57 Miss. 138; Pearce v. Perkins, 70 Miss. 280; Bennett v. Maxwell, 82 Miss. 72; Seals v. Perkins, 96 Miss. 704; Brothers v. Beck, 75 Miss. 487; Nitchum v. McInnis, 60 Miss. 945; Fletcher v. Trewaller, 60 Miss. 965; Carlisle v. Chrestman, 69 Miss. 392.

Herndon v. Mayfield, 79 Miss. 533, does not militate against this position of ours. The point made in that case was that the order of the board was void because the jurisdiction of the board is special and limited and therefore the order should have set out the evidence in the case which induced the board to extend the time to the assessor. The court held that that was not required. The court did not overrule the decision of McGuire v. Investment Company, 76 Miss. 808, which does apply to the case at bar. The court did say, however, in the Herndon case, that where the proceedings of the board of supervisors at its September meeting when the assessment rolls should have been approved, does not show any action upon that question, but it appears that a part of the record of the proceedings at that meeting is destroyed, that then in that state of proof the tax collector's deed raised the presumption that the assessment roll had been approved by the board or by operation of law and the burden of proof fell to the appellant to show that such approval had not been made. This mutilation of the proceedings of the board of supervisors is quite a different thing from that of cutting out some blank leaves from the back of an assessment roll, complete even to the recapitulation. That act does not approve that roll by operation of law. We do not understand what counsel for appellant means, by making that point. If parts of the assessments on the roll were mutilated (as was not--a fact seen by the chancellor) that would not raise a presumption that the roll was filed at the time required by law. The board had to act on the roll at the July meeting, and besides by positive testimony it was shown not to have been filed.

The levy of taxes at a place not authorized by law has been held void in the following cases: Johnson v. Futch, 57 Miss. 73; Gambell v. Witty, 55 Miss. 26; Bank v. Lewis, 64 Miss. 727.

Counsel states "the broader rule" adopted in Johnson v. Board of Supervisors of Yazoo County should be followed. It was not "a rule adopted" in those cases, but the construction of a statute, and that construction under a particular state of facts, the same as the case at bar, has become "a rule," viz.: "a rule of property." Baker v. Columbia. Bank, 112 Miss. 819; Lumber Co. v. Moss, 119 Miss. 185. We have carefully read the Johnson case and if there is anything in it that militates against the Harris case and the Sexton case, we have been unable to find it.

An assessment roll is not filed until it is delivered to the clerk of the board of supervisors for the purpose of being permanently left in his office. Mullins v. Shaw, 77 Miss. 900. Our court said in McGuire v. Union Co., 75 Miss. 872, that an assessment roll filed as this one was void. See, also, Smith v. Nelson, 57 Miss. 138.

The board of supervisors were not authorized by the act dividing the county into two districts to approve the land roll for the first district at its meeting held in the second district. The act dividing the county into two districts expressly says so. This question came up for adjudication in the case of Yazoo Delta Investment Co. v. Suddoth, 70 Miss. 416.

Green Green & Potter, for appellee, filed learned brief but dealing...