Jones County Land Co. v. Fox

• Citation: 120 Miss. 798,83 So. 241
• Decision Date: 08 December 1919
• Docket Number: 20873
• Court: United States State Supreme Court of Mississippi
• Parties: JONES COUNTY LAND CO. v. FOX

83 So. 241

120 Miss. 798

JONES COUNTY LAND CO. v. FOX

No. 20873

Supreme Court of Mississippi

December 8, 1919

APPEAL from the chancery court of Jones county, HON. G. C. TANN Chancellor.

Bill of the Jones County Land Company against D. B Fox. From a decree for defendant plaintiff appeals.

The facts are fully stated in the opinion of the court.

Decree reversed and cause remanded.

Shannon & Schauber, for appellant.

There are four propositions presented by the record in this case for decision by this court to wit: 1. Was witness Jordan, the deputy sheriff, who sold the appellant the land at said tax sale, and also executed its deed to the same, a competent witness to impeach his own official acts? 2. Was the tax deed executed and delivered to appellant void because signed "Luther Hill, Tax Collector, by Amos Jordan, D S."? 3. Was the sale of the three forties in section 14 invalid under section 6962 of Hemingway's Annotated Mississippi Code 1917, because it was not sold with the forty in section 23 as one tract?

We submit that after appellant had introduced its tax deed it had made out a prima-facie case under section 1643 of Hemingway's Annotated Mississippi Code, 1917, which is in these words: "A conveyance made by a tax collector to an individual purchaser of land at a sale for taxes, and the list of lands sold to the state at such sale, shall be prima-facie evidence that the assessment and sale of the land were legal and valid."

It is elementary law that an official is an incompetent witness to impeach his own official acts, yet this is just what the lower court permitted witness Jordan to do over the objections of appellant. Planters Bank v. Walker, 3 S. & M. (Miss.) 409; Shotwell v. Hamblin, 23 Miss. 159; Stone v. Montgomery, 35 Miss. 106; Mixon v. Clevenger, 74 Miss. 67."

2. Was the tax deed executed and delivered to appellant void because signed, "Luther Hill, Tax Collector, by Amos Jordan, D. S."? This proposition was urged very earnestly by the counsel for appellee on the trial of the case in the lower court. However, we think the proposition is settled by the statutes under the chapter on Sheriffs in Hemingway's Annotated Mississippi Code 1917.

Section 3111 of said Code says: "The sheriff of each county shall be tax collector therein in case of the failure of the sheriff to qualify as tax collector, within the same time allowed for taking the oath of office and giving bond as sheriff, he shall thereby vacate the office of sheriff, and the vacancy be filled according to law."

Section 3081 of the same code says: "Every sheriff shall have power to appoint one or more deputy sheriffs, and to remove them at pleasure . . ."

We can find no authority whatever authorizing the tax collector to appoint deputies; therefore, necessarily his deputy sheriffs are under the law, deputy tax collectors. However, in our opinion, this proposition has been finally disposed of in the case of McKee v. Swalm, reported in 81 Miss. on page 679, in which Justice WHITFIELD, after examining the statutes, cited, says: "After a careful consideration, we are of the opinion, clearly, that a deputy sheriff, is virtue officii, also deputy tax collector . . ."

3. Was the sale of the three forties in section 14 invalid under section 6962 of Hemingway's Annotated Mississippi Code 1917, because it was not sold with the forty in section 23, as one tract? The case relied on by counsel for appellee, and followed by the lower court, is the case of Wilkinson v. Harrington, 115 Miss. 637. We think the case now before the court and the case just cited can be easily distinguished.

While it is true that the northeast quarter of northeast quarter of section 23 adjoins the southeast quarter of the southeast quarter of section 14, and only a section line separates same, yet the facts in these cases are quite different.

At the time of the sale the lands in both sections were owned jointly by Mrs. B. M. Davis, Winnie McGilvary, Wirt McGilvary, and appellee D. B. Fox, who each owned an undivided one-fourth's interest in all of the land. We find the lands in section 14 were assessed to S. A. McGilvary while the land in section 23 was assessed to Mrs. N. A. Davis; it is true witness Jordan testified that Mrs. N. A. Davis and S. A. McGilvary was one and the same person, but this could not be correct as the pleadings show that Mrs. McGilvary's first husband was named W. T. McGilvary, and if such was the case her initials must have been S. A. as the lands in section 14 were assessed to S. A. McGilvary; the land in section 23 was assessed to Mrs. N. A. Davis, yet her second husband's name was B. W. Davis; therefore, her initials could not have been "N. A." and yet have been "S. A." McGilvary. Another very material difference to this case and the Wilkinson case is that the lands in the latter case were owned by Wilkinson and assessed to him, while the lands in the case were owned by four parties, including appellee, at the time of the sale for taxes, and was not assessed to the four owners.

Even though Witness Jordan testified that he knew S. A. McGilvary and Mrs. N. A. Davis to be one and the same person yet she was not the owner of the tract, even though it had been assessed to her, and knowledge of the officer in making a sale was not notice to the purchaser in this instance. The lands in the two sections were assessed in different names, and did not belong to the parties to whom it was assessed.

We call the court's attention to the fact that the lands assessed in section 14, and the land assessed in section 23 were not assessed together, but on different pages of the assessment roll, and assessed under separate names did not make the tax sale invalid under said section 6962.

We also call the court's attention to the fact that appellee, who now claims to own the entire four interests in said land, owned, at the time of said tax sale an undivided one-fourth's interest in said land, and claims to have purchased the other three-fourths interest after the tax sale, and after he had due notice that the lands had been sold for the taxes for the year 1913. We also call the court's attention to the fact that appellee bought the three-fourth's interest on the 30th day of November, 1914, but had not filed his deed for record at the trial of the case in January, 1919. In this connection we also call the court's attention to the order of the lower court (see page 27 of the record) setting aside the decree pro confesso and final decree in favor of appellant as to D. B. Fox, alone; it nowhere appearing at that time that D. B. Fox owned more than an undivided one-fourth's interest in said lands. Did the failure of the court to set aside said decree as to the three other defendants ensure to the benefit of appellant?

We respectfully submit that this case should be reversed and remanded.

C. S. Street for appellee.

The decree appealed from should be affirmed for at least three reasons: 1. The tax deed is void, because it was not executed according to law. 2. The attempted sale of the land for taxes was void for the reason that it was not offered for sale in the manner provided by law. 3. The attempted sale of the land for taxes was void because there was an attempt made to make two sales of land constituting a single tract, assessed as the property of the same owner (though not in the same name) and should have been sold, or offered for sale as one tract, and not two tracts.

The three propositions will be discussed briefly in their order.

1. It will be noted that the tax deed in this case is signed and acknowledge this way: "Luther Hill, Tax Collector by Amos Jordan, D. S.,

The question involved is not whether there is any provision in law for the appointment of a deputy tax collector for the tax deed is not even signed by a deputy tax collector but by a "D. S."

It shows on its face that the regular tax collector himself neither signed it nor acknowledge it: At most, the letters after Amos Jordan's name can mean nothing more than "deputy sheriff." though they might mean a thousand other things, and section 6966, Hemingway's Code, requires a tax deed to be signed by the tax collector--not by the sheriff. If the tax deed in this case had been signed. "Luther Hill, sheriff," it would have been void. How, then can a tax deed be valid which is signed Amos Jordan, D. S., even if it be conceded that D. S. means deputy sheriff?

It is true that our court held in McRee v. Swalm, 81 Miss 679, that a deputy sheriff is by virtue of his office, also deputy tax collector; but that is not the point in this case and has nothing to do with it. The sheriff is also by virtue of his office as well as by statute, also tax collector, but notwithstanding this fact, a tax deed signed simply by the sheriff would be void, because he does not sell land for taxes as sheriff, but as a tax collector and the law requires him to execute deeds as tax collector, so, a deed signed by the deputy sheriff is not good, even though he might be deputy tax collector. The tax deed in McRee v. Swalm, supra, was signed: "Chas. MsNair, tax collector, by R. C. Applewhite, deputy;"--not "D. S." nor "deputy sheriff," but simply deputy following Chas. McNair tax collector, and of course the word "deputy" standing alone could refer to nothing except "tax collector" following McNair's name; but to add the letters "D. S." is to say that Amos Jordan was not executing the deed as deputy tax collector but as deputy sheriff. Then, too, it will be noted also that the deed in the McRee case was acknowledge before the chancery clerk by "R. C. Applewhite, deputy tax collector of Lincoln county," which is quite another story from that made by this record. Then, too, the McRee case shows that there was...