Mitchell v. Tubb

• Decision Date: 25 May 1914
• Docket Number: 16399
• Citation: 65 So. 216,107 Miss. 221
• Court: Mississippi Supreme Court
• Parties: LAFAYETTE MITCHELL v. B. M. TUBB

65 So. 216

107 Miss. 221

LAFAYETTE MITCHELL v. B. M. TUBB

No. 16399

Supreme Court of Mississippi

May 25, 1914

APPEAL from the circuit court of Monroe county. HON. J. H. MITCHELL Judge.

Suit by B. M. Tubb against Lafayette Mitchell. From a judgment for plaintiff, defendant appeals.

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

Reversed and remanded.

Pain &amp Pain, for appellant.

We submit first that the general laws for assessment and collection of taxes and sale under said assessments during the years 1889, 1890, 1891 and part of 1892 was the so-called Madison Act as passed by the legislature of 1888 and found in the Laws of 1888, on page 24. That said act repealed all former assessment laws and that this general assessment law was not repealed or changed by the legislature in 1890 and was not in fact repealed until 1892. That this Madison Act of 1888 is unconstitutional and void and any assessment made under it, and any sale under it, for taxes is void and invalid and passes no title. That this act was not declared unconstitutional by the supreme court until in 1900. That this court will take judicial knowledge of these acts and laws without the same being plead by the defendant. That the assessor of taxes and the board of supervisors are presumed to make all assessments and levy all assessments under the then existing general law of assessments. That the assessor of taxes and the board of supervisors are mere executive officials in this respect and are not judicial officers. That the court in this case will presume that the assessor and the board of supervisors assessed the taxes in this case under the Madison Act, the then existing general assessment law in the absence of any proof to the contrary.

The plaintiff showed in his evidence that this land was sold in the year 1892 for the taxes of 1891 and introduced no proof that the sale was made under any special or local act of the legislature. Therefore the court will presume that this sale of the land was made under the Madison Act and sale is therefore void and invalid and, of course, therefore gives no title, hence, whatever prima facie case plaintiff made out by the introduction of his tax deed and list of lands sold to the state, was rebutted by the fact that he showed, in addition, that this sale was made under the unconstitutional Madison Act and that his tax deed was worthless and void.

The cases of Coffee v. Coleman, 85 Miss. 14 and Butts v. Ricks, 28 Miss. 533, have no bearing or throw no light upon the question at bar and are not decisions in support of the appellee.

Plaintiff in his suit of ejectment, must recover, if at all, upon the validity of his own title and not on the weakness of defendant, who is shown to be in possession of the land. Hawkins v. Mangum, 78 Miss. 97; Scarborough v. Elmer, 87 Miss. 508; Eastland v. Lumber Company, 90 Miss. 334; Hammer v. Yazoo, etc. R. R. Co., 56 So. 466; Duke et al. v. Clark et al., 58 Miss. 465; J. Davaney v. Koon, 45 Miss. 71; Revenue Agt. v. Tonella, 70 Miss. 701; Ray, Executor v. Doe, 10 S. & M. 461; 16 Cyc., letter "C" and authorities, 1076; 10 L. R. A. (N. S.); Railroad v. Shannon, U. S. S. C. Digest 689, sec. 47, page 4196; Day v. Smith, 87 Miss. 406-409; Coffee v. Coleman, 85 Miss. 145; Laws of 1888, page 183; Scharborough v. Elmer, 87 Miss. 508; Butts v. Ricks, 82 Miss. 533; Gregory v. Brogan, 74 Miss. 649.

We respectfully submit that the general law for assessing property, which was in force during the time that lands in controversy were assessed and sold, was the Madison Act of 1888; that this act is void and unconstitutional and a sale under it passes no title; that the court must presume that the assessor and the board of supervisors acted under said general assessment law, the Madison Act, in making the assessments; that, therefore, appellee, by showing that the land was sold in 1892 for taxes of 1891, by the introduction of the record from the chancery clerk's office of Monroe county, Mississippi, did rebut and destroy whatever prima facie case he made out by the introduction of the tax deed from the state; that, therefore, appellee failed to make out his case sufficient to require the appellant to make any proof. The burden of proof was then on appellee to show that this sale did not occur under this invalid and void general assessment law but occurred under some other and different special or general law which appellee did not do.

Even though we may be mistaken in our position as above outlined, yet the court erred in not allowing appellant to reopen his case to show that the sale occurred under the Madison Act and erred in not allowing appellant to amend his bill of particulars so as to show that the sale of the lands took place under assessments made under the Madison Act.

We therefore submit that the case should be reversed and a judgment entered here for appellant.

Leftwich & Tubb, for appellee.

It will be observed that this action proceeded regularly under chapter 42 of the Code on ejectment, all in statutory form. Bills of particulars and abstracts of title were demanded by both parties and the demands responded to, and of course, the evidence of title was necessarily confined to the matters contained in the bills of particulars. Code of 1906, section 1827. The bill of particulars is an admission of record that the respective parties claim under the respective chains of title set out therein. Gilliam v. Case, 67 Miss. 588.

There is no suggestion anywhere in the bill of particulars that defendant below, represented as he was by astute and experienced lawyers, would contend or claim that the assessment was made under the alleged Madison Act of 1888. The cause went to trial on that state of the record, the jury was empanelled and sworn, the evidence pro and con was admitted and read to the jury and both parties closed the case. The court then granted a peremptory charge to the plaintiff, as he was bound to do, and at that late day, the defendant undertook to reopen the case, to set up that the assessment was made under the alleged Madison Act, unconstitutional, and therefore, the sale for taxes was void. This was an attempt palpably to go outside of the bill of particulars and import into the record, facts which would destroy the plaintiffs case without giving plaintiff any notice whatever that such an attempt would be made. In his evidence defendant showed that he and those under whom he claimed had been in possession of the land in question for many years, but of course the state bought the land in 1892 and no statute of limitations could run against it, and Tubb himself did not buy from the state until the 27th day of March, 1912. The proof showed that Tubb had never been in possession of the land, but possession or occupancy is not necessary to effectuate a valid tax deed. Lewis v. Griffin, 60 So. 651, 103 Miss. 578.

But after the plaintiff had tried his case, after the case had been tried and closed, and judgment rendered by the court, without excuse or sxplanation of any sort and without extenuation for not doing so before, defendant attempted to amend his bill of particulars by pleading that the assessment was made under the alleged unconstitutional Madison Act, and therefore void. The court overruled the attempt to thus re-open the case, and we submit that the court could not, in justice, have done otherwise, for the plaintiff had no notice whatever that his title would be assailed at such a point, and no opportunity to adduce countervailing testimony, and his unpreparedness would have to at once overwhelmed him without any fault or any lack of oversight of his own. This attempt came too late, as the court has, time and time again, heretofore decided. Leach v. Flynt, 33 So. 496; Richards v. Lee, 45 So. 570, 91 Miss. 657; Geoforth v. Stingley, 79 Miss. 398; Early v. Long, 89 Miss. 285; 15 Cyc. 108.

As these authorities well establish, not only was the court eminently correct in disallowing the attempt to amend and the course taken has been approved time and time again, but as many times decided in declining to reopen the case, the court was acting strictly within the bounds of discretion, and there is certainly no evidence here that he has abused his discretion. 15 Cyc. 108, and cases cited; Dugan v. Chaplin, 75 Miss. 441.

Plaintiff planted himself on his tax deed and the list of lands sold to the state with all the presumptions thereunder by section 1982 of Code of 1880, and of course, if defendant were going to assail the validity of the assessment as void, he should certainly have so stated in his bill of particulars, not only in fairness, but by the very terms of the statute, so that the plaintiff might have shown that the assessment was made under the valid statute of the Code of 1880. We hardly think anything could be more plain than that. So much for the necessity, on the part of the defendant, of keeping within the terms and conditions of his own bill of particulars.

But counsel in their brief invoke the presumption that the assessment of this land was under the void Madison Act, and therefore, was illegally made. This is the fundamental voice of the argument of defendant's counsel in support of the motion. Counsel wholly ignore the force and effect of a presumption. Presumptions do not supply facts, and they merely make the proof of incidents and details unnecessary. In the recent case of Caffy v. Tindall, 56 So. 177, the lower court charged the jury as follows: The law presumes, and in the absence of evidence to the contrary, conclusively presumes, that Bill Caffy, if he was sane, knew that real estate would not pass under a nuncupative will. The court in holding this charge error, remarked: "In this action, the knowledge, or want of knowledge, on the...