Lamar Life Ins. Co. v. Billups

• Decision Date: 15 June 1936
• Docket Number: 32291
• Citation: 169 So. 32,175 Miss. 771
• Court: Mississippi Supreme Court
• Parties: LAMAR LIFE INS. CO. v. BILLUPS

169 So. 32

175 Miss. 771

LAMAR LIFE INS. CO. v. BILLUPS

No. 32291

Supreme Court of Mississippi

June 15, 1936

Division B

1 TAXATION.

Purpose of suit to confirm tax title is not only to settle contentions between main parties but is to make tax title good against world, so that there may be no further litigation concerning validity of tax title (Code 1930, sec 402).

2 TAXATION.

Statute authorizing proceeding to confirm tax title, and requiring names of all persons interested in land, so far as known, to be set forth in bill, must be strictly complied with (Code 1930, sec. 402).

3. TAXATION.

In suit by purchaser at tax sale to confirm tax title, failure to make owners of land at time of sale, who were known to purchaser, parties to suit, held reversible error, notwithstanding that their interest had been divested by trust deed foreclosure sale subsequent to tax sale (Code 1930, sec. 402).

4. TAXATION.

As regards question as to whether tax deed vests perfect title to lands, statute prescribing form of deed must be construed with other sections, particularly provision that failure to give notice to lienors renders tax sale void as to them (Code 1930, secs. 3259-3262, 3273).

5. TAXATION.

In proceeding to confirm tax title, clerk's tax sale books should be made exhibits to bill, or bill should allege that required notice was given to parties whose interests are affected, so that court may see that there are no outside liens (Code 1930, secs. 402, 3259-3263).

HON. D. M. RUSSELL, Chancellor.

APPEAL from chancery court of Harrison county HON. D. M. RUSSELL, Chancellor.

Suit by George W. Billips against the Lamar Life Insurance Company. Decree for complainant, and defendant appeals. Reversed and remanded, with directions.

Reversed and remanded.

Wells, Wells & Lipscomb and L. O. Smith, Jr., all of Jackson, for appellant.

The special demurrer to the bill of complaint should have been sustained. The record clearly shows that at the time of the assessment of the property in question for the taxes of 1931, and at the time of the sale of said property for the collection of said taxes, the title to the property was in L. O. Johnson, Mrs. Jennie E. Johnson, and Louisa Johnson Dorries, and we submit that said parties were necessary, proper and indispensable to this litigation.

We submit that the proceedings for the confirmation of tax title is statutory and that the statute must be strictly followed. The bill of complaint must set out all facts required by Section 402 of the Mississippi Code of 1930, and the procedure as outlined in said section must be followed exactly.

This court on numerous occasions has held that the names and places of residence of all persons interested in the land so far as known to complainant or as he can ascertain by diligent inquiry must be set out in the bill of complaint.

Section 402, Code of 1930; Sections 113 and 114, Griffith's Chancery Practice; Smith v. Denny, 90 Miss. 434, 43 So. 479; Paepcke-Leicht Lbr. Co. v. Savage, 101 So. 709, 137 Miss. 11; Trager v. Jenkins, 75 Miss. 676.

Proceedings in assessment, levy, and sale of property for taxes are strictly construed in favor of the taxpayer.

City of Jackson v. Williams, 92 Miss. 301, 46 So. 551; City of Jackson v. Tucker, 101 So. 708; Hopkins v. Sandidge, 31 Miss. 668; Deason v. Dixon, 54 Miss. 585; Dunbar v. Interior Lbr. Co., 59 So. 852; Rainey v. Lamb Hardwood Lbr. Co., 45 So. 367.

The complainant failed to establish the validity of his title.

Section 1578, Code of 1930.

If no prima facie case was made by the complainant in the court below by the introduction of the deed from the chancery clerk, the burden was on the complainant to establish the validity of his title.

Roberts v. Lewis, 81 So. 481.

It was necessary for the complainant to, introduce evidence and prove, that there was a valid assessment made of the land for the taxes of 1931, a valid levy of taxes, and that the sale was made at the proper time and place and in the manner provided by law, and that the complainant was vested with a good and valid fee simple title.

Sections 1578 and 3256, Code of 1930; Mayson v. Banks, 59 Miss. 447; Houston Bros. v. Lenhart, 101 So. 289; Shelby v. Burns, 114 So. 349.

Notice to public in compliance with Section 3162 of the Mississippi Code of 1930; was not given by the Board of Supervisors of Harrison County, Mississippi.

Section 3126, Code of 1930; Cameron v. Whittington, 82 So. 311; Section 4303, Code of 1906; Smythe v. Whitehead, 97 So. 529; Henderson Molpus Co. v. Gammill 115 So. 716.

Proof of posting of notice to taxpayers was not spread on minutes of the Board of Supervisors.

Section 1596, Code of 1930.

Gardner & Backstrom, of Gulfport, for appellee.

Appellant says that it, is necessary, under the statute, that all persons having any interest in the land at the time of the tax sale be made defendants. This is not correct. The statute provides that the confirmation decree shall be effective against all persons claiming the land by any title which existed at or before the tax sale. The suit proceeds against the adverse title wherever and in whomsoever vested. The demurrer was properly overruled.

Appellant appears to reason that in the record of the assessment, levy and sale of the land in question, a fatal blunder by the county officers is somewhere discoverable by the court, but that fatal blunder is not pointed out to the court.

Section 3256 of the Code of 1930 does provide that the list shall vest title, but without the right of possession and subject to the right of redemption. It is further provided in said section that a failure to transmit the list or a defective list shall not render the title void. It is further provided therein that when the list is so filed it shall be notice to all persons.

Section 3273, Code of 1930.

Title certainly passed to the complainant under the list or under the deed or both.

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.

Section 1578, Code of 1930.

Section 1578 of the Code of 1930 makes the conveyance itself evidence of the validity of the assessment and sale, and not the act of formally introducing the same in evidence. When appellant admitted the execution, validity and filing of the list it was no longer necessary to introduce the same in evidence and it was not introduced in evidence for that reason.

Appellant says that Section 1578 of the Code of 1930 does not apply to a tax deed executed by the chancery clerk. Appellant has evidently overlooked the case of Acoff v. Roman, 172 Miss. 141, 159 So. 555, wherein this court held that a tax deed executed by the chancery clerk is within the provision of said Section 1578.

The proceedings of the board of supervisors and tax collector of Harrison County were not entered into by guess. They were painstakingly exact. If the third Monday of September, 1932, was a statutory sales day, and we submit that it was, then the sale was authorized without the order of the board of supervisors. If the third Monday of September, 1932, was not a statutory sales day as contended by appellant, then the sale was authorized by the order of the board of supervisors. In dodging one horn of the dilemma appellant is impaled on the other.

Appellant says that the form of the notice shown in this record was before the court in State v. Wyoming Mfg. Co., 103 So. 11, but that its sufficiency was not at issue in that case. Appellant overlooks, however, the later case of Rawlings v. Ladner, 165 So. 427, wherein the sufficiency of a notice in the exact form shown in this record was the only issue involved. The notice was held sufficient. Rawlings v. Ladner is exactly controlling on this point.

The board of supervisors found and adjudicated that a copy of the notice had been posted in the courthouse of Harrison County, Mississippi. This was sufficient.

Alvis v. Hicks. 150 Miss. 306, 124 So. 612.

Argued orally by L. 0. Smith, Jr., for appellant and by Oscar Backstrom for appellee.

OPINION

Ethridge, P. J.

Appellee, George W. Billups, filed a bill in the chancery court of Harrison county to confirm a tax title to a tract of land in Biloxi described as "1 Lot 80 feet front, S. by Gulf; E. by Maybury; N. by Howard Avenue; W. by E. Johnson, in Township 7, Range 9, City of Biloxi." He alleged that the title had passed out of the United States government and had become subject to private ownership; that prior to August 1, 1930, L. O. Johnson, Jennie E. Johnson, and Louisa Johnson Dorries were the owners, in fee simple, of said land, and on said date gave a deed of trust thereon in favor of appellant, the Lamar Life Insurance Company; that on the 7th day of March, 1934, the Lamar Life Insurance Company, the said L. O. Johnson, Jennie E. Johnson, and Louisa Johnson Dorries, having made default in the payment of the indebtedness secured by said deed of trust, requested the trustee to foreclose same. It was alleged that the trustee in the deed of trust foreclosed same, said foreclosure being in all respects regular, and at the sale the Lamar Life Insurance Company was the purchaser.

It was then averred that but for the tax sale in favor of the appellee the said Lamar Life Insurance Company would be the owner in fee simple of said land. Appellee further alleged that for the fiscal year 1931 the above-described land, assessed to L. 0. Johnson, was legally assessed, the assessment roll having been examined equalized, notice of the filing and equalization thereof given, and approved in accordance with the statutory...