Kennedy v. Sanders

• Decision Date: 20 May 1907
• Docket Number: 12,689
• Citation: 43 So. 913,90 Miss. 524
• Court: Mississippi Supreme Court
• Parties: CHARLES S. KENNEDY ET AL v. WILLIAM S. SANDERS ET AL

43 So. 913

90 Miss. 524

CHARLES S. KENNEDY ET AL v. WILLIAM S. SANDERS ET AL

No. 12,689

Supreme Court of Mississippi

May 20, 1907

FROM the chancery court of Leflore county, HON. PERCY BELL Chancellor.

Sanders and others, appellees, were the complainants in the court below, and Kennedy and others, appellants, were defendants there. From a decree in favor of complainants the defendants appealed to the supreme court.

The complainants, claiming the ownership of certain real estate filed their bill in chancery against the defendants to cancel, as a cloud upon their title, the claims of the defendants thereto, and for a confirmation of the title of complainants. Proper deraignment of title from the United States Government through successive grantees down to complainants was duly shown. The defendants' answer asserted claim to the realty by virtue of a sale made to the state of Mississippi on May 10 and 11, 1875, for the taxes of 1874, fortified by the following statutes of limitation: The three-year limitation in favor of tax titles contained in § 1709, Code 1871, and §§ 2730 and 2731 of Code 1892, being the ten-year limitation against suits to recover land at law and in equity respectively.

A decree was rendered in favor of complainants, and a commissioner appointed to take an account.

The opinion of the court states the facts.

Affirmed.

McWillie & Thompson, for appellant.

The defendant claimed under a sale to the state for taxes which occurred on May 10, 1875, the time fixed by law for sales under the Abatement Act (Laws 1875, p. 14). All lands sold for taxes under the Abatement Act were sold for the taxes of 1874 alone, since the act was in reality an act to abate all taxes that had accrued prior to the year 1874 (Laws, p. 71) although no lands were subject to sale for taxes under the act which were not delinquent for taxes that accrued prior to 1874. Payment of the taxes of 1874, at any time before May 10th, would, under the act, have relieved the land of all claim for unpaid taxes (Laws 1875, p. 13). The regular time for tax sales was the first Monday in February, 1875, and that day had passed before the enactment of the Abatement Act which was the only authority for the sale on May 10, 1875.

It is not questioned that no lands were salable under the Abatement Act which were not delinquent for taxes which accrued prior to 1874, but it would appear from the assessment roll of 1875 shown in evidence that the lands must have been claimed by the state for the taxes of some year prior to 1874. Under § 1674, Code 1871, all assessments were predicated of ownership on the 1st day of January, and the ownership of the state of the land in question on that date could not have resulted from any tax sale later than that of 1874, which must have been made for the taxes of 1873, for, as above stated, tax sales, other than Abatement Act sales, occurred on the first Monday of February. Gamble v. Witty, 55 Miss. 33.

We are aware of the decision apparently holding that assessment to the state prior to 1874 is not evidence that land was held or claimed by the state and that the only sufficient evidence of that fact is a tax collector's deed or sales list, but we do not believe that the conclusion will bear examination. Dingey v. Paxton, 60 Miss. 1038.

The announcement of the doctrine was wholly unnecessary in the case cited for the reasons that it was affirmatively shown that the taxes prior to 1874 had been paid, and the assessment was void because of the imperfect description of the property. But the interpretation given to the Abatement Act cannot stand the test of reason. The act did not provide alone for the sale of lands held or owned by the state, but such also as were claimed by the state, and it was necessary that there should be some one who should say what lands were claimed by the state in order that the act might become effective. This duty was devolved by the act on the tax collectors of the several counties, sec. 9 of which provided that they should immediately make out full, complete and proper lists of all such lands and taxes on same fully charged up, etc., and proceed to collect the taxes or sell the lands for nonpayment of the same. Laws 1875, p. 14. An indulgence of the presumption that the tax collector discharged the duty imposed upon him by the terms of positive law cannot be complained of by any one interested, for it is open for him to show that the tax collector erred and the land was not of the character salable under the Abatement Act. In the absence of any showing to the contrary validity should be imputed to the precedent steps taken to subject the land in the one case as well as in the other. The question is not one of substantive right, but of evidence or practice. It may be shown that the tax collector erred and sold the land not claimed by the state, but his act in listing land as so claimed, made in obedience to law, should be given full faith and credit until something is shown to impeach its propriety.

Apart from the duties imposed upon the auditor of public accounts in respect to the ascertainment on final settlement of the taxes for which the land was sold contained in sec. 7 of the act, we find that by sec. 13 thereof the chancery clerks were required to make a careful examination of the sales lists filed with them by the tax collectors as to proper and perfect descriptions of lands sold under the act and the taxes on same, belonging to the state, etc., and thereupon to record the list and forward the original to the auditor whose deed itself imports that he, the custodian of all records showing the status of the lands as to previous sales regarded it as properly sold under the act in question. Laws 1875, pp. 13, 16.

It is impossible to believe that it was contemplated by the lawmakers that a purchaser under this act should have the burden of showing that the acts of the collector, clerk and auditor were not all erroneous. Any other view but poorly consists with the idea that the sales under the act did not pass merely such title as the state had but conferred a new title deriving its efficacy from proceedings under the act, and other broad views that have been expressed as to the scope of the act. Cochran v. Baker, 60 Miss. 282.

The case of Dingey v. Paxton does not conflict with this view when properly considered. In that case plaintiff's ancestor, the original owner of the land, died in possession of it in 1873, and plaintiff produced tax receipt showing payment of the taxes of 1872 and 1873, and the assessment roll of 1873 introduced by defendant showed a void description and an unexplained erasure of the words "unknown owner" and the insertion of the word "state" in lieu thereof, besides being in conflict with the receipt for the taxes of 1872. Here the land was wild and no one had ever been in possession of it, an assessment roll was introduced which did show that the land was delinquent for taxes accrued prior to 1874 and no tax receipt or other evidence was introduced to contradict such showing.

Moreover, the limitation relied on in Dingey v. Paxton, a case where it was affirmatively shown that the tax claimant was without title, was not the three-year limitation of the Code of 1871, but the one year limitation arising under the act of 1876, which by its terms provided a short period of redemption and made the title of the state after that time absolutely unassailable as to all lands remaining unredeemed.

The cases cited to sustain the position taken in Dingey v. Paxton have no relevancy to the point decided. They are Vaughan v. Swazie, 56 Miss. 704; Weathersby v. Thomas, 57 Miss. 296, and French v. Ladd, 57 Miss. 678, which simply decided that a deed from the state for forfeited tax land must be supported by the sales list of the tax collector. They did not hold that it was incumbent on the tax purchaser to make any showing as to matters preceding the sale.

The question of whether or not there had been a sale to the state does not appear from several decisions to be alone decisive of whether or not the land was subject to sale under the Abatement Act. In Prophet v. Lundy, 63 Miss. 606, 607 and Chamberlain v. Lawrence County, 71 Miss. 958, the decisive question is said to be whether or not the land was delinquent for taxes that accrued prior to 1874, and it certainly could be delinquent for such taxes without having been sued for them. This fact of delinquency was to be ascertained in the manner provided for by the act and the conclusions of the officers charged with that duty imports verity in the absence of any showing to the contrary.

The argument that the three-year limitation of § 1709, Code 1871, is inapplicable finds no support in the idea that the land in controversy is to be treated as land that was not subject to taxation, and the case of Hoskins v. Railroad Co., 78 Miss. cited by appellee, is without pertinency, the land being subject to taxation whether it was subject to sale under the Abatement Act, or not.

The decision in the case cited related to land which by reason of its character was not subject to taxation at all. As to the land there involved the owner was released from any obligation whatever to inform himself of any tax proceeding affecting it and in respect to any such proceeding no presumption of regularity could be indulged. Such land was entirely outside the scheme of our revenue law and was affected by none of its regulations. Its character as land not subject to sale for taxes in no wise depended upon anything the owner might have done in respect to paying the taxes on anything the revenue authorities might have done or omitted to do in subjecting it for nonpayment.

This court has applied the three year limitation of the Code of 1880 (§...