Mullins v. Shaw

• Decision Date: 09 April 1900
• Court: Mississippi Supreme Court
• Parties: SIDNEY MULLINS ET AL. v. WILLIS SHAW ET AL

27 So. 602

77 Miss. 900

SIDNEY MULLINS ET AL. v. WILLIS SHAW ET AL

Supreme Court of Mississippi

April 9, 1900

March 1900

FROM the chancery court of Sunflower county, HON. A. McC. KIMBROUGH, Chancellor.

Shaw and others, appellees, were the complainants in the court below; Mullins and others, appellants, were defendants there. The object of the bill was to cancel a tax title held by appellants as a cloud upon complainants' title to the land in controversy. The decree of the court below canceled the tax title and the defendants appealed to the supreme court. The nature of the controversy is apparent from the opinion of the court.

Affirmed.

Baker &amp Moody and J. H. Wynn, for appellants.

The only reason why it is insisted by the appellees that this sale is void is for the reason that the taxes for which the land was sold were levied upon the land assessment roll for the year 1883, which roll it is insisted was not delivered to the clerk of the board of supervisors at the time required by law, the first Monday of July. On the part of the appellants we contend:

(1) That the evidence introduced by appellees is insufficient to overthrow the prima facie case that the roll was returned at the time required by law, made by the tax sales list; and

(2) That even if the court should be of the opinion that the evidence is insufficient to prove that fact, the sale is still not invalid for the reason that a part of the taxes for which the land was sold, to wit, the tax due the board of levee commissioners for the Yazoo & Mississippi delta, was not paid or tendered before sale.

Counsel for appellee, as to the delivery of the roll, rely chiefly upon the case of Brothers v. Beck, 75 Miss. 482, in which case the delivery of the same roll in controversy was in dispute, and for the reason that this court in that case held that under the testimony introduced in that case, it was made certain that the roll was not delivered at the time required by law, they argue that the question is settled. We submit, however, that that case is not at all conclusive of the case at bar; that case was decided upon the evidence made a part of the record in that suit, and this case will be decided upon the evidence introduced in this suit. It is not res adjudicata, nor can it be used as an authority in this case; it was simply a finding by the court of the facts shown by the evidence in that case, and not conclusive of the same fact in any other suit whatever. In fact, the evidence in the two cases is very materially different.

The list of lands sold to the state for taxes is prima facie evidence that the lands embraced therein were legally assessed, were delinquent for taxes duly imposed, and were sold according to law. See § 526, code 1880; Grayson v. Richardson, 65 Miss. 222. When, therefore, it was admitted that the lands were sold for taxes in March, 1887 and a sales list made out, subscribed and certified to by the tax collector, and filed as required by law, it was prima facie proven that the assessment roll of 1883 was delivered to the clerk of the board of supervisors on or before the first Monday of July. The question then presents itself: Is the evidence introduced by appellees sufficient to overcome this prima facie presumption as to that fact?

In order to overcome this prima facie case, the appellees introduced in the evidence:

(1) The assessment roll itself, showing (a) that the assessor made his affidavit to it on September 3, 1883, and (b) that the chancery clerk certified that it was filed in his office the same day.

(2) The minutes of the board of supervisors, showing an order approving the roll on that day.

(3) The deposition of D. L. McCauley, the deputy assessor, who made the roll and who testified to its delivery as follows:

"Ques. 4. State when it was the first time that you presented this land roll of 1883, as a completed roll, to the clerk of the board of supervisors.

"Ans. I don't remember exactly, but I think it was somewhere between the 1st and 4th of September.

"Q 5. State why it was you did not present this roll on or before the first Monday of July.

"A. Because it was incomplete."

The court will observe that, the witness testified that he delivered the roll as a completed roll for the first time, he thought between the 1st and 4th of September. In the second question, counsel asked witness why it was that he did not present "this roll" on or before the first Monday in July; so we insist, and call the court's attention to the fact, that when counsel said "this roll" he referred to the completed roll, and even though he did not, the witness so understood him when he answered, " Because it was incomplete."

This is all the evidence on this point introduced by the appellees, and only went to prove that the land roll of 1883, as a completed roll, was for the first time delivered to the clerk of the board of supervisors between the 1st and 4th of September of that year. What, of course, the witness and counsel meant by "completed roll" is left to conjecture. The evidence does not prove or attempt to prove that the roll was delivered for the first time at any date other than that between the 1st and 4th of September. It does not show that it was delivered at any day for the first time either in July or August.

The appellees' case, therefore, as to the delivery of the roll for the first time will have to stand or fall on a date between the 1st and 4th of September; and if it can be shown that the clerk and board had the roll in their possession at any time prior to that date, it must be presumed that it was in the hands of the clerk at the proper time, for the reason that the only evidence introduced by complainant is to the effect that the clerk got it in his possession for the first time at a date subsequent to the date when it is conclusively shown to have been in his possession. Grayson v. Richardson, 65 Miss. 222.

The respondents, appellants, then introduced in evidence the depositions of W. M. Duncan and J. H. Baker, the former a member of the board of supervisors in August, 1883, and the latter a member of the board of equalization, which met with the board of supervisors at its August term, 1883, and both of whom testified that the roll was presented to the board of supervisors and the board of equalization at its August term, 1883, by the chancery clerk, and was equalized as provided by the Acts of 1882. We call the court's special attention to this evidence, as it is too long to copy in this brief, and as it goes to show conclusively that the roll was in the hands of the clerk and board at the August term, 1883. Respondents also introduced the following order of the board of supervisors, entered at the August term, 1883, to wit:

"Board met pursuant to adjournment on this Tuesday morning, August 7, 1883, and there were present the same as yesterday; and the board spent the day in sitting with the board of equalization for the examination of the assessment rolls for 1883, after which it is ordered that the board do adjourn until tomorrow morning at 8 o'clock."

This order, taken in connection with the depositions of Duncan and Baker, shows beyond the peradventure of a doubt that the assessment roll was in the hands of the clerk on August 7, 1883; and as the evidence of appellees was to the effect that it was delivered for the first time between the 1st and 4th of September, a date subsequent to the 7th of August, the presumption must be indulged (as held by this court in the case of Grayson v. Richardson, cited above) that it was delivered to the clerk at the proper time.

As to the second proposition. Admitting for argument's sake that the assessment roll was not returned on the first Monday of July, and that it was void, yet our contention is that it. was void only as a basis for the levy and collection of taxes due the state and county, and was not void as a basis for the collection of the taxes due the board of levee commissioners for the Yazoo and Mississippi delta, and that as that tax was not paid or tendered before sale, the sale cannot now be invalidated because the state and county tax was illegal. In other words, if a part of the tax was legal and a part illegal, the sale cannot be invalidated for that reason unless the legal tax was paid or tendered before the sale. We are aware that the rule in such cases, prior to 1877, was to the contrary, as laid down by this court in the eases of Dogan v. Griffin, 51 Miss. 782, and Beard v. Green, 51 Miss. 856, but the legislature in that year changed the rule, and did so again in 1880. See Carter v. Hadley, 59 Miss. 130.

By § 525, code 1880, it is expressly enacted that "if any part of the taxes for which such land was sold was illegal or not chargeable on said land, but part was chargeable, that shall not affect such sale nor invalidate such conveyance, unless it shall appear that before such sale the amount legally chargeable on said land was paid or tendered to the tax collector." This section has several times been construed by this court, and held to apply to sales to the state as well as to individuals. Corburn v Crittenden, 62 Miss. 125; Gibbs v. Dortch, 62 Miss. 671; Lochte v. Austin, 69 Miss. 271. The remaining question, therefore, then, is as to the validity of the tax due the board of levee commissioners for the Yazoo and Mississippi delta; and before entering upon a discussion as to the validity of that tax, we desire to call the court's attention to, the distinction between that tax and the tax due the state and county. The forruer, as we shall show, was a tax levied for the purpose of making certain improvements that would only benefit a designated portion of the state, while the latter was a tax levied for the usual and ordinary...