Long Bell Co. v. McLendon , 127 Miss. 636 ( 1921 )

■ Holden, J.,

delivered the opinion of the conrt.

This is a suit in chancery by the appellant, Long Bell Company, to cancel the claim of appellee to certain lands and to quiet the title of appellant thereto. On a final hearing the court refused to grant'the relief sought, from which decree this appeal is prosecuted.

This appeal presents two questions for our decision: One is whether or not section 4320, Code of 1906 (section 6954, Hemingway’s Code), is unconstitutional, in that it provides an assessment, by the collector, of lands left un-assessed by the assessor, but fails to provide for any notice to the oivner; the exact point in this case being whether a tax title obtained through a sale under this statute is valid. The other question raised is Avhether or not the collector may legally back assess land and sell it under the above section in a case Avhere the same land had already been assessed, but assessed' as vacant, and not valued, by the assessor, and approved by the board of supervisors in due course under the law.

We shall omit deciding the first question as to the constitutionality 'of the statute, because it is unnecessary to do so, since a decision of the second question Avill settle the case.

The appellee claimed title under a tax sale for the taxes of 1913 and 1914, Avhich were back assessed by the collector, in 1915, under said section 4320, Code of 1906 (section 6954, Hemingway’s Code). The appellant claimed in his bill, and showed by undisputed proof, that the land Avas assessed on the rolls for the years of 191.3 and 1914 as “vacant” land and valued at blank or nothing. These assessments Avere considered, passed upon, and approved by the board of supervisors in due course during said years. And it is urged therefore that said land was not “left unas-sessed by the assessor” as provided in said statute, and that the back assessment by the collector Avas void, and consequently the sale thereunder was void.

After a careful consideration of the question we have reached the conclusion that the contention of the appellant is well grounded. The land had been assessed on the rolls for the years 1913 and 1914 and has passed under the eyes of the assessor and board of supervisors, and been duly and legally approved by the latter. Therefore it was not “un-assessed” for these years in the sense that it had escaped assessment and could be back assessed by the collector. In such a case the regularity or validity of the assessment is not involved, but the inquiry is, before the assessment under the said statute can be made, whether or not there has been an, assessment in fact which has not escaped the notice and consideration of the board of supervisors. In other words, has the property been- Avithheld from the assessment roll? We think not in this case, because there appears to have been an actual assessment and approval by the board of supervisors, even though it may not be valid in the eyes of the law. On this reasoning we think the back assessment here by the collector was without warrant-and void.

The view we express is supported clearly in principle in Adams v. Luce, 87 Miss. 220, 39 So. 418. In that case this court said:

“It will not do to say that, because an assessment is utterly void in the eye of the law, though once actually made, such property has escaped taxation. The very term As-cape/ ex profirió vigore, implies that it had never been found or known or listed for taxation. That escapes detection which never has been seen in fact. That escapes assessment which never has in fact been assessed in any way. That which, as a matter of fact, has been returned by the owner, placed upon the assessment roll by the assessor, dealt with by the board of supervisors and by'the tax collector, cannot be said, in any proper sense of the words ‘escaped- taxation’ or within the scope of the evil to be remedied by the revenue law, to have escaped taxation.”

From the authority quoted it seems clear to us that property which appears on the assessment roll duly approved by tlie assessing authorities and the board of supervisors, in due course under the law, has not escaped taxation nor been “left nnassessed by the assessor;” and, this being true, the act of the collector in assessing the property for those years for which it had already been assessed upon the approved assessment rolls was unauthorized by the statute and void. See section 4305, Code 1906, and Robertson v. Bank, 123 Miss. 380, 85 So. 177. It follows that the sale made under such assessment passed no title to *the purchaser.

The decree of the lower court is reversed, and judgment is given here for the appellant.

Reversed and judgment here for appellant.