Salter v. Polk

• Decision Date: 18 March 1935
• Docket Number: 31511
• Court: Mississippi Supreme Court
• Parties: SALTER et al. v. POLK et al

159 So. 855

172 Miss. 263

SALTER et al. v. POLK et al

No. 31511

Supreme Court of Mississippi

March 18, 1935

Division A

1 TAXATION.

Tax deed is prima facie evidence of legal assessment and sale of land, but is not prima facie evidence as to date of sale if sale is not made on day fixed by statute (Hemingway's Code 1927, section 8297; Code 1930, section 1578).

2 TAXATION.

In suit to confirm tax title under tax sale at date other than that fixed by statute, bill alleging that sheriff immediately filed tax deed held sufficient, though deed on its face showed that twenty-three days elapsed between date of sale and date of acknowledgment (Hemingway's 1927 Code sections 8250, 8297; Code 1930, section 1578).

3. TAXATION.

Statute requiring tax collector to "execute" conveyances to tax sale purchasers does not require acknowledgement of deed to convey title (Hemingway's 1927 Code, section 8250).

4. TAXATION.

Complainants, suing to confirm tax title under sale at date other than that fixed by statute, had burden to prove allegation of bill that tax collector's deed was immediately filed in chancery clerk's office (Hemingway's Code 1927, section 8297).

5. TAXATION.

In suit to confirm tax title, bill alleging that title passed from government by recorded patent to person against whom lands were assessed for taxes and that land was sold for unpaid taxes and tax deed was issued, filed, and acknowledged held sufficient to show deraignment of title (Code 1930, section 405).

HON. T. PRICE DALE, Chancellor.

APPEAL from the chancery court of Lamar county HON. T. PRICE, DALE, Chancellor.

Suit by Mrs. N. M. Salter and others against E. C. Polk and others. For a decree dismissing the bill, complainants appeal. Reversed and remanded.

Reversed and remanded.

E. F. Coleman, of Purvis, for appellants.

The bill of complaint follows, the statute fully and completely, in that the complainants have joined all parties that had an interest in the lands at the time of the sale, and has also joined other parties that claim an interest acquired since the sale, and has also shown that the lands passed from the United States government by patent, and that it was assessed for taxes for the year 1925, and that the said taxes were not paid and that the said lands were duly and lawfully advertised for sale for the taxes and damages and that the tax collector then executed a tax deed and then and there delivered same to the chancery clerk as required by law, and that the said deed there remained for the space of two, years as by statute required and was not redeemed from said sale.

The tax collector states that he failed to hold the tax sale on the first Monday of April as required by statute and gives his reason therefor. Then the board of supervisors passes an order on the 4th day of May, 1926, fixing the time for the said sale as being the first Monday of June, 1926. The order directs the tax collector to sell all lands in said county delinquent for taxes for the year 1925, then directs the tax collector as to the place of the sale and the advertising of the lands. We feel that the order is sufficient to pass a valid tax title to the said lands so sold for the taxes due thereon for the year 1925.

Section 4367, Code 1906; I. H. Bass v. N. Batson, 171 Miss. 273.

Wilbourn, Miller & Wilbourn, of Meridian, for appellees.

The brief filed by Messrs. Travis & Travis on behalf of Messrs. E. C. Polk and A. Polk, seems fully to state the case and the principles involved and that it does not occur to us that it will be at all necessary nor helpful to the court for us to repeat or reiterate what these gentlemen have said in their brief and we, therefore, adopt their brief in toto as the brief on behalf of the Mississippi Power Company.

Travis & Travis, of Meridian, for appellees.

It goes without saying, and must, of course, be admitted, that the appellants were required to allege a cause of action, and that presumptions of law will not be supplied to support a bill wholly insufficient in its vital allegations. It will be seen at a glance that the bill really sets out none of the fundamental facts essential to the relief prayed for. Practically all of the allegations thereof are mere conclusions of the pleader or of law.

Griffith's Equity, 186, 187; Miller v. McDougall, 44 Miss. 682; Burks v. Burks, 66 Miss. 495; Downing v. Campbell, 131 Miss. 138.

It is clear, in the light of the foregoing authorities, that the bill must be treated as an unsworn bill, and is therefore without any equity upon the face of it, under section 402, Code 1930.

Griffith's Equity 290, 292, section 291.

Most of the vital allegations of the bill are conclusions of the pleader of law. And the presumption in support of tax deeds cannot aid the bill, since the tax deed exhibited with the bill contradicts the allegations thereof. The law existing at the time required such tax deed to be filed with the chancery clerk immediately after the sale, while the deed exhibited showed the sale to have been made on the 7th of June, 1926, and that the same was not acknowledged and completed until June 30, 1926, twenty-three days after the sale.

Conner v. McLaurin, 77 Miss. 373; McInnis v. Wiscassett Mills, 78 Miss. 52; Jones v. Rogers, 85 Miss. 802; Metcalf v. Bank, 89 Miss. 649; Sec. 2935, Code of 1906.

The bill should have alleged that the title was not in the government or the state at the time of the alleged assessment and sale, to, entitle appellants to the benefit of the presumption referred to. Especially is this true under existing conditions, when, as matter of common knowledge, both the government and the state have reacquired within recent years millions of acres of land in the state.

OPINION

McGowen, J.

In the lower court a demurrer was sustained to the original bill filed by the widow and minor children of T. M. Salter, deceased, and joined in by the executors of his will, against Florence Britton, B. B. Britton, Polk & Co., and the Mississippi Power Company, the appellees here. The bill sought to confirm a tax title and to cancel certain deeds alleged to have been a cloud upon the title.

After the demurrer was sustained, by leave of the court, an amended bill was filed which sought only to confirm a tax title. A demurrer was interposed to this bill which was also sustained by the court, and the appellants declining to further amend, the bill was dismissed and an appeal is prosecuted here by the complainants in the court below.

In brief, the bill describes certain lands in Lamar county, and alleges that same had been assessed for taxes to, Florence Britton; that she, nor anyone else for her, had paid the taxes, and that the lands were lawfully sold for the taxes by the sheriff of Lamar county, and purchased by T. M. Salter, deceased. A copy of the tax collector's deed to T. M. Salter, in statutory form, was made an exhibit to the bill. It was further alleged that the sheriff failed to sell the lands in that county for delinquent taxes on the first Monday in April, the date fixed by law for such sales, and that on his petition, a copy of which was made an exhibit to the bill, the board of supervisors made a general order directing the tax collector of that county to sell all lands at public auction which were delinquent for the year 1925, on the first Monday in June, 1925, at the front or east door of the courthouse in the town of Purvis, by giving notice thereof in the papers. A copy of this order was made an exhibit to the bill. The bill further alleged that the lands in controversy were patented by the United States government to Florence Britton on May 28, 1914, citing the book and page of the records of said county on which said patent was recorded; that the lands were sold for taxes by the sheriff; and that, thereupon, in the manner and within the time required by law, the tax collector executed to said T. M. Salter, deceased, an official tax deed in legal...