J. M. Jones Lumber Co. v. Homochitto Development Co.

• Decision Date: 09 May 1932
• Docket Number: 30005
• Court: Mississippi Supreme Court
• Parties: J. M. JONES LUMBER CO. v. HOMOCHITTO DEVELOPMENT CO. et al

141 So. 589

163 Miss. 305

J. M. JONES LUMBER CO. v. HOMOCHITTO DEVELOPMENT CO. et al

No. 30005

Supreme Court of Mississippi, Division B

May 9, 1932

Suggestion Of Error Overruled June 13, 1932.

(Division B.)

1 TAXATION.

Taxes accruing against land involved became lien from date they accrued.

2. PLEADING. Where defendant gave notice of special matter under general issue, sufficiency of evidence thereunder or its admissibility could be raised, although not formally denied by counter notice (Code 1930, section 536).

Facts were that vendor sued for taxes which he paid to prevent sale of land for taxes, and purchaser pleaded general issue and gave notice that under such plea he would prove that he had cut and removed all timber conveyed to him prior to expiration of five years' in which he had to cut and remove timber and had surrendered all rights accrued, except right to operate railroad over land, and that by reason of purchaser's action in so doing, under express provisions of contract, he was not thereafter required to pay any taxes.

3. LOGS AND LOGGING. Under contract releasing purchaser of timber from paying taxes after removing timber, purchaser held required to pay taxes accrued against land when he finished cutting timber, although not immediately collectible.

Sales agreement provided that purchaser should pay all taxes accruing, but that if purchaser cut and removed all timber before expiration of five years allowed and should then surrender all rights thereunder, except the right to operate railroad over land, then purchaser was not required thereafter to pay taxes.

4 PLEADING.

Notice of special matter under plea of general issue must be taken most strongly against pleader.

HON. R L. CORBAN, Judge.

APPEAL from the circuit court of Adams county, HON. R. L. CORBAN, Judge.

Action by the Homochitto Development Company and another against the J. M. Jones Lumber Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Affirmed.

Whittington & Brown, of Natchez, for appellant.

The words "taxes hereafter accruing must, in order to give effect to the contract between the parties, be construed as meaning taxes hereafter becoming due and payable.

There must be either written notice of evidence to be offered in denial or avoidance of the special matter set up by the defendant under the plea of general issue or it cannot be denied by the plaintiff and the effect of failure to deny must be to confess the matter to be true and then rest upon the proposition that it is inadmissible, incompetent or insufficient to establish a defense to the action set forth in the declaration.

Section 536, Code of 1930.

Until issue was joined the defense had to be accepted as true if sufficient at law, and in the absence of any issue joined on that defense or on the facts constituting the defense the court would have to give judgment in the light of the pleadings and of the issues made.

Jones & Stockett, of Woodville, for appellees.

The defense which the notice under General Issue attempted to set up was wholly insufficient in law. No traverse to it was necessary, and, being a notice under the general issue, no demurrer could be interposed. The only way in which the plaintiff below could avoid this affirmative matter would be by objection to the evidence when offered.

Wren v. Hoffman, 41 Miss. 616; Railroad Co. v. Wallace, 50 Miss. 244; Lumber Co. v. Rather, 111 Miss. 55-59.

The taxes were a lien on the property from January 1, 1930, and it was the duty of appellant to have paid them on or before December 15, 1930.

Appellant was, under the law and under his pleading, required to establish his affirmative defense.

Winn v. Skipworth, 14 S. & M. 14; Kyle v. Calmes, 1 How. 121; Fox v. Hilliard, 35 Miss. 160; Lamar v. Williams, 39 Miss. 342; Porter v. Still, 63 Miss. 357; Archer v. Helm, 70 Miss. 874; Harris v. Sims, 155 Miss. 216, 217, 218; Y. & M. V. R. R. Co. v. Levy, 141 Miss. 211, 212.

Argued orally by L. A. Whittington, for appellant, and by Ackland H. Jones, for appellee.

OPINION

Ethridge, P. J.

The Homochitto Development Company, a Mississippi corporation, and Riggs Cypress Company, Limited, a Louisiana corporation, filed suit in the circuit court of Adams county against J. M. Jones, operating as J. M. Jones Lumber Company, setting up an agreement between the Homochitto Development Company and J. M. Jones by which the Homochitto Development Company sold to J. M. Jones certain timber upon certain lands situated in Mississippi, with the right to cut and remove said timber within a period of five years, and with the further right to operate a logging road or tramroad to haul logs or lumber cut from the lands involved or other lands which may be purchased by J. M. Jones in the state of Mississippi. The agreement was that the development company would pay the taxes for the year 1926 and all other taxes that should accrue thereafter, or should hereafter be fixed upon the lands or timber herein conveyed for any year prior to the year 1927. It was further stipulated as follows: "It is further stipulated and agreed that hereafter during the life of this instrument, the vendee, his heirs, legal representatives or assigns, except as in writing may be agreed upon, shall pay all taxes hereafter accruing against the lands and timber hereinabove described during the life of this instrument, but not for more than five years from the date hereof. But, notwithstanding, it is further specifically stipulated herein and hereby that if vendee, his heirs, legal representatives or assigns, shall cut and remove all the timber herein and hereby conveyed from said lands prior to the expiration of five years, and shall surrender all rights hereunder, save and except the right to operate a railroad or tramroad over, through and across said lands for removing other timber, and release all claims against said timber, if any there be standing or remaining on said lands, then the vendee shall not be required thereafter to pay any further taxes on said lands."

A like contract with the same stipulations was made between J. M. Jones and the Riggs Cypress Company, and both of these contracts were made exhibits to the declaration.

The declaration alleged that Jones had failed to pay the taxes for the year 1930, permitting same to...