Pettibone v. Wells

• Decision Date: 07 March 1938
• Docket Number: 33096
• Citation: 181 Miss. 425,179 So. 336
• Court: Mississippi Supreme Court
• Parties: PETTIBONE v. WELLS et al

179 So. 336

181 Miss. 425

PETTIBONE v. WELLS et al

No. 33096

Supreme Court of Mississippi

March 7, 1938

Division B

1 TAXATION.

A board of supervisors in assessing property for taxation is a court of special and limited jurisdiction, and its records should affirmatively show that all jurisdictional facts existed when board made assessment roll final and equalized and assessed tax.

2 TAXATION.

An order of board of supervisors reciting that notice that tax assessment rolls were open for examination had been published in a newspaper in county and posted in courthouse sufficiently showed that proof of publication was on file notwithstanding absence of evidentiary facts showing proof of publication (Code 1930, section 3162).

3 TAXATION.

Proof of publication of notice that tax assessment rolls were open for examination is for purpose of showing board of supervisors that publication had been made as required by law (Code 1930, section 1595).

4. TAXATION.

An order of board of supervisors in tax proceeding was required to recite only the ultimate jurisdictional fact that notice that tax assessment rolls were open for examination had been published, as distinguished from evidentiary fact of proof of publication (Code 1930, section 3162).

5. COURTS.

The facts conferring jurisdiction must be affirmatively found to exist and should appear upon records or minutes to support judgment of court of special and limited jurisdiction, but, where court of general jurisdiction has rendered judgment, it is presumed that necessary jurisdictional facts exist.

6. COUNTIES.

Orders of a court or board, such as county board of supervisors, administered by men unlearned in technical requirements, should not be strictly construed.

7. TAXATION.

The failure of order of board of supervisors in tax proceeding to show that assessor was present at meeting at which objections to assessments were made did not invalidate tax title, since assessor's presence was not a jurisdictional requirement, but was only for purpose of enabling him to assist board.

8. TAXATION.

Where statute providing for publication of notice that tax assessment rolls were ready for examination did not require publication in more than one issue of newspaper, and provided that there might be but ten days between equalization and examination, continuous publication was not required, and one publication was sufficient (Code 1930, section 3162).

HON. BEN STEVENS, Chancellor.

APPEAL from the chancery court of Lamar county, HON. BEN STEVENS, Chancellor.

Suit by Mrs. Elsie McLain Pettibone against Mrs. Inez Wells and others, involving the title to realty, wherein the defendants filed a cross-bill seeking confirmation of a tax title. From a decree confirming the tax title, plaintiff appeals. Affirmed.

Affirmed.

J. M. Morse, of Poplarville, for appellant.

The order set out in the statement of facts is based on Section 3162 of the Mississippi Code of 1930, and the appellant contends that the tax title is void for the following reasons z

1. If the order set out in the statement of facts 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.

2. That the order set out at the August meeting, as shown in the statement of faets, 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; McDevitt 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.

3. Being a court of limited and special jurisdiction, before a valid order can fix a valid lien upon a taxpayer's property, all jurisdictional facts must appear in the face of the order and 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; Sections 1556, 1596, and 1595, Code of 1930.

4. Being a judgment of a court of limited and special jurisdiction, all jurisdictional facts must appear of record in the order. If any jurisdictional 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; Aden v. Board of Suprs., Issaquena Co., 107 So. 753, 142 Miss. 696; Board of Suprs. 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; McDevitt v. Wails, 122 So. 766, 154 Miss. 671.

5. Section 3163, Mississippi Code of 1930, makes it mandatory that the assessor be present at the August meeting, or, it is necessary that the board should adjudicate that he was sick or could not be present and that the silence of the order in adjudicating anything about the assessor, which is a jurisdictional matter, renders the assessment void.

Section 3163, Code of 1930.

6. That even if the court should hold that it is not necessary for the proof of publication to be on file, that the August, 1930, order of the board of supervisors of Lamar County, Mississippi, is void because it shows on its face that there was a subsequent issue of the newspaper between the published notice and the return day, which issue did not contain the notice set out in the order of the board of supervisors.

Monroe County v. Minga, 127 Miss. 702, 90 So. 443; Planters Mercantile Co. v. Braxton, 120 Miss. 470, 82 So. 323; McMahan v. Building Assn., 75 Miss. 965, 23 So. 431; Maris v. Lindsey, 124 Miss. 742, 87 So. 13.

John A. Yeager, of Lumberton, for appellee.

It was the bounden duty of the appellant to timely and properly make, in cooperation with the assessor, the tax return for the years 1930-1931 on the property here involved, under Section 3145, Code 1930. The proof showing that no change in the original assessment return was made and no objection being filed and no appeal taken, this constituted an appearance and waiver of notice on the part of appellant as a presumption of law and the liberal construction in favor of tax title required by Section 79, Constitution of 1890, and Section 1578, Code 1930. The principle is fundamental by force of Section 14 of the Constitution that aaa order, judgment or decree, rendered by any court, is not binding upon the person or property sought to be effected thereby, unless due and timely notice--actual or constructive--be first given. Nevertheless, the law presumes that the tax assessor, under Section 3145, regularly and correctly performed his duty--Robertson v. U. S. Nur. Co., 83 So. 307, 121 Miss. 14, this, coupled with the proof that no change in the property owner's assessment return was made, constitutes an appearance by the property owner to the extent of waiving the necessity of giving notice under the, facts in the case at bar.

Following the enactment of Section 3162, Code of 1930, a prescribed form of notice to taxpayers emanated from the office of the State Tax Commission, the uniform and constant use of which has continuously since and does now obtain by the Board of Supervisors throughout the State as reflected by suit--State v. Wyoming Mfg. Co., 138 Miss. 249, 103 So. 11; Henderson, etc. v. Gammill, 149 Miss. 576, 115 So. 716; Rowlings v. Ladner, 174 Miss. 611, 165 So. 427.

In the case of Hemphill v. Wofford, 178 Miss. 687, 173 So. 427, our court sternly rejected the idea of "reading into a statute something that is not therein contained" by the use of the following words: "This we cannot do."

Counsel for appellant overlooks the presumption of law in favor of the validity of the tax title here involved afforded by Section 1578, Code of 1930. By force of this statute and the list of lands sold to the state at such sale, bottomed on a tax sale made at the time prescribed by statute, when construed in the light of Section 79 of the Constitution which provides," the court shall apply the same liberal principles in favor of such titles as in sale by executions . ." and by Section 3049, Code of 1930, providing that the purchaser at an execution sale shall become vested with all the right, title and interest, which the judgment debtor had in and to such lands, and which, by law, could be sold under such execution,--supplies evidence and legal presumption of sufficient force and magnitude to sustain the validity of the tax sale, unless and until the appellant adduces evidence of sufficient legal force to overthrow said...