Mullins v. Lyle

• Citation: 183 So. 696,183 Miss. 297
• Decision Date: 17 October 1938
• Docket Number: 33343
• Court: United States State Supreme Court of Mississippi
• Parties: MULLINS v. LYLE et al

183 So. 696

183 Miss. 297

MULLINS v. LYLE et al

No. 33343

Supreme Court of Mississippi

October 17, 1938

Division A

1 TAXATION.

Where county board of supervisors ordered publication of notice to taxpayers of tax assessments, order and notice were published together with clerk's certificate that it was a true and correct copy of the order, and board at its next meeting entered entire publication on its minutes and also publisher's proof of publication, and entered order finally approving assessment rolls, minutes sufficiently showed that notice was on file with clerk on day of final order approving assessment, as against contention that minutes did not show adjudication by board that publication and proof thereof were on file in clerk's office at time order was made (Code 1930, sec 3162).

2 COUNTIES. Process.

The statute requiring the seal of clerk of court to be upon all process refers to process addressed to individuals, and not publication of a general notice by a county board of supervisors to the public or part thereof not specifically named (Code 1930, sec. 2964).

3. TAXATION.

A notice to taxpayers of tax assessments, which was ordered by county board of supervisors, was not within statute requiring seal of clerk of court to be upon all process (Code 1930, secs. 2964, 3162).

4. PROCESS.

The object of the statute requiring seal of clerk of court to be upon all process, as regards requirement of a seal, is to advise the party upon whom the writ is to be served that its authenticity is genuine (Code 1930, sec. 2964).

HON. M. B. MONTGOMERY, Chancellor.

APPEAL from the chancery court of Leake county HON. M. B. MONTGOMERY, Chancellor.

Suit by Mendola Lyle and others against T. H. Mullins for cancellation of a deed or lease contract as a cloud upon plaintiffs' title. Judgment for plaintiffs, and defendant appeals. Reversed and entered.

Reversed, and judgment here for appellant.

F. E. Leach, of Carthage, for appellant.

At a comparatively early date in the history of our own Supreme Court, in the case of Daniel M. Griffin v. D. W. Sheffield, 38 Miss. 359, when this question of the "impression of a public seal" was before the court for determination, it was held: "The statute of registration does not contemplate the recording of the impression of a public seal; and hence, it is no objection to the admission, in evidence, of a certified copy of a recorded deed, that a copy of the impression of the official seal of the officer who took the acknowledgment of the grantor does not appear on it, if it be stated in the body of the certificate of acknowledgment, that it was certified under such official seal."

In the case of Burton v. Cramer, 86 So. 578, it was held that "a writ without the seal of the court, or a statement of the fact, if there were no seal, is bad." From this opinion we are unable to ascertain just what the recital as to the seal was; but the authority for the holding of the court in this case was based on the case of Pharis v. Conner, 3 Smedes & M. 87.

In the case of Pharis v. Conner, supra, the court held that "A writ was not good without the seal of the court, or a statement of the fact if there were no seal." From the briefs of counsel in this case we find that the process was under attack "Because the writ is not attested by and with the seal of said Circuit Court; and that said writ is insufficient in this, the words, 'and seal of said court' are not written on said writ."

From the above holding, it is apparent that if this process had recited that it was "under seal of the court" it would have been sufficient and would have been a compliance with the law.

In the case of McAllum v. Spinks, 91 So. 694, the court in passing on the requirement of a seal said: "A writ without the seal of the court, or a statement of the fact if there is no seal, will be held bad on appeal by a defendant on whom such writ was served."

In the case of Rawlings v. Ladner, 165 So. 427, complaint was made that the notice given by the board of supervisors was defective, in that it was addressed "To the taxpayers of Forrest County, Mississippi" instead of "To the public," and the court held the notice to be legal and a compliance with the law.

In a more recent case Pettibone v. Wells, 179 So. 336, the precise question here under review was presented to the court, except that the point of attack was not directly made on the absence of the recital as to the seal, but the question of the seal was nevertheless finally put to rest against the contention of appellees in this case.

We respectively submit that the case now before the court is a recast of the case of Pettibone v. Wells et al., the orders in both cases being identical.

In the case of Martin v. Board of Supervisors of Winston County, 178 So. 314, the court in reviewing the proceedings of the board of supervisors, the court said: "In dealing with boards or courts administered by men unlearned in technical requirements, strict construction of their orders should not be had. 'The minutes of boards of supervisors reciting their orders and judgments, like those of justices of the peace, will be looked upon with indulgence. Although they may be unskillfully drawn, if by a fair and reasonable interpretation their meaning can be ascertained, they will be sufficient to answer the requirements of law.'"

Appellant respectfully submits that the record reflects a valid and legal assessment roll for the years 1930 and 1931, and also for the years 1932 and 1933; and that the sale for taxes which rests entirely on the validity of the assessment roll under the agreement of counsel was a valid and legal sale; and, therefore, the judgment and decree rendered in the lower court should be reversed and a judgment entered by this court dismissing appellee's bill of complaint.

O. B. Triplett, Jr., of Newton, for appellees.

If the order is void then the tax title is void.

State v. Wyoming Mfg. Co., 138 Miss. 249, 103 So. 11; Henderson Molpus v. Gammill, 149 Miss. 576, 115 So. 716; Gordan v. Smith, 122 So. 762, 154 Miss. 787; McDevit v. Walls, 122 So. 766, 154 Miss. 671.

The order of the board at its August meeting is a judgment of a court of limited and special jurisdiction.

State v. Wyoming Mfg. Co., 138 Miss. 249, 103 So. 11; Henderson Molpus v. Gammill, 149 Miss. 576, 115 So. 716; Gordan v. Smith, 122 So. 762, 154 Miss. 787; McDevit v. Walls, 122 So. 766, 154 Miss. 671; Monroe County v. Minga, 127 Miss. 702, 90 So. 443; Board v. Ottley, 112 So. 466, 146 Miss. 118; Robertson v. Bank, 115 Miss. 840, 76 So. 689; Machinery Co. v. Webster County, 154 So. 723, 170 Miss. 601; Bank of Weir v. Attala County, 156 Miss. 560, 126 So. 192.

Before the court of limited and special jurisdiction can fix a lien upon property and sell the same for taxes there must be (a) A valid complaint. (The assessment); (b) A summons. (The newspaper notice); (c) A return by the officer designated. (In this case the printer is the officer designated and the return is the proof of publication).

Virden v. Bowers, 55 Miss. 1; Austin Western Machinery Co. v. Webster County, 154 So. 723, 170 Miss. 601; Monroe County v. Minga, 127 Miss. 702, 90 So. 443; Bank of Weir v. Attala County, 126 So. 192, 156 Miss. 560; Board v. Ottley, 112 SO. 466, 146 Miss. 118; Henderson Molpus v. Gammill, 115 So. 716, 149 Miss. 576; Robertson v. Bank, 115 Miss. 840, 76 So. 689; Equipment Co. v. Dunlop, 160 So. 734, 172 Miss. 752; Smythe v. Whitehead, 133 Miss. 184, 97 So. 529; Robb v. Telegraph Co., 104 Miss. 165, 61 So. 170; Hinton v. Perry County, 84 Miss. 536, 36 So. 565; Marks v. McElroy, 67 Miss. 545, 7 So. 408; Henry v. Supervisors, 111 Miss. 434, 71 So. 742; Adams v. Bank, 103 Miss. 744, 60 So. 770; Bolivar County v. Coleman, 71 Miss. 832, 15 So. 107.

Being a judgment of a court of limited and special jurisdiction all jurisdictional facts must appear of record in the order. If any of the essential facts are omitted from the order then no presumption is indulged in to supply them.

Robertson v. First National Bank, 76 So. 689, 115 Miss. 840; Adams v. First National Bank, 60 So. 770, 103 Miss. 744; Bolivar County v. Coleman, 15 So. 108, 71 Miss. 832; Board of Supervisors v. Ottley, 112 So. 466, 146 Miss. 118; Henderson Molpus v. Gammill, 115 So. 716, 149 Miss. 576; Gordan v. Smith, 122 So. 762, 154 Miss. 787; Peoples Bank of Weir v. Attala County, 126 So. 192, 156 Miss. 560.

Even if a proper notice to the public had been published and proof of publication thereof spread on the minutes of the board, this would have been mere evidence but not the "ultimate jurisdiction of fact "(a) that the notice was actually published or (b) that proof of publication had been filed with the clerk.

Aden v. Board of Supervisors, Issaquena County, 107 So. 753, 142 Miss. 696; Pettibone v. Wells, 179 So. 336.

A publication of the July order of the board of supervisors constituted no notice to the public.

Wood v. Moran, 55 Miss. 105; Gwin v. McCarroll, 1 S. & M. 351; Zachary v. Kerr & Bowers, 1 S. & M. 584; Edwards v. Toomer, 14 S. & M. 77; Rawlings v. Ladner, 165 So. 427, 174 Miss. 611; Cameron v. Whittington, 82 So. 311, 120 Miss. 595.

The alleged notice was void for want of a seal.

Sections 2964 and 3162, Code of 1930; Austin Western Machinery Co. v. Webster Co., 154 So. 723, 171 Miss. 601; Sharp v. Smith, 178 So. 595; Hatchett v. Thompson, 165 So. 112, 174 Miss. 502; Burton v. Cramer, 86 So. 578, 123 Miss. 848; Griffin v. Sheffield, 38 Miss. 359.

OPINION

McGowen, J.

This is an appeal from a decree of the chancery court in favor of Mendola Lyle et al., appellees, against T. H. Mullins, appellant, cancelling his title to certain lands.

Mullins the defendant in the court below, claimed title to two...