Green v. Craft , 28 Miss. 70 ( 1854 )

Mr. Justice FisheR

delivered the opinion of the court.

The object of the bill was to obtain a decree cancelling a deed made by the tax collector of Tippah county to the plaintiff in error, C. A. Green, on the 5th of April, 1847, for a quarter section of land, sold by the said collector on that day for the payment of the tax assessed thereon for the year 1846.

The complainant derives his title to the land through inter.mediate conveyances from the heirs of one James H. Shorter, who, it is alleged, was in his lifetime the owner of the land. ■Jt appears that Shorter died some time during the year 1846 ; when the land descended to his heirs. The bill alleges, among .other things, “ that the said tract of land belonged at the date .of the alleged tax sale, to the minor heirs of the said James H. Shorter; and was not, and of right could not be, sold for taxes as their property; and further, that it was not assessed for the taxes of 1846 as their property, nor as the property of their said father, James H. Shorter, nor sold as the property of their father.” The proof introduced in support of these allegations was made by the probate clerk of said county. He says, “ I find the tract of land in controversy (north-west quarter section thirty-three, township six, range two east) assessed in the name ,of no one. It is valued at $1.25 per acre; total value, $200.” He then annexes a copy from the assessment roll, showing the manner in which the assessment was made, as an exhibit to his .deposition.

Two questions are made upon this allegation of the bill, and testimony offered to sustain it. The first is, that under the various provisions of the act of 1846, under which the assessment and sale were made, it was not necessary that the name of the owner of the land should appear in the assessment; and, Secondly. That there is no direct charge or averment showing who was the owner of the land on the first of May, 1846, the commencement of the fiscal year, and the date to which the assessment related, when made. The term “taxes,” it is said, “ includes all contributions imposed by the government upon individuals for the service of the State.” The individual, and not his property, pays the tax. The property is resorted to for the purpose of ascertaining the amount of the tax with which the owner must be charged, and for the purpose of enforcing payment, when the owner shall be legally in default in paying at the time stipulated by law. No person is a taxpayer until he has been so declared by the proper officer. The assessment must be as certain in designating the person chargeable with the tax at the commencement of the fiscal year, as it must be in designating the amount of the charge, and the property to which reference is made for the purpose of ascertaining such amount. An assessment must be thus made in order to create a liability on the part of an individual to pay the tax. If no such assessment be made, no liability is created, and of course there can be no default in discharging that which has no existence. To authorize the collector to sell property to enforce the payment of taxes, there must be both a legal liability on the part of the owner to pay the tax, and a legal default in making the payment.

Having made this general statement of the law on this subject, as it exists upon principle, we will proceed to examine the argument of the plaintiffs’ counsel, insisting that a different rule has been established by the act of 1846, under which the assessment and sale are alleged to have been made. Counsel appear to rely specially upon the provisions of the 15th section of the act referred to. That section requires the assessor to commence in the lowest number of the township in his county, and in the north-east corner of the township. He is then required to enter in succession all the subdivisions of each section, as they may belong to different individuals, or if the whole of a section belong to one person, then the whole may be set down in the same entry upon the assessment list, unless it be necessary to divide it for the purpose of affixing a different value to each subdivision, for the purpose of increasing the amount of the tax. If this section have any direct or important bearing upon the question under consideration, it is certainly not in aid of the position assumed by counsel. It appears in direct terms to require the lands of individuals to be assessed in the name of the owner. But whether it does or not, it has not dispensed with the owner’s name in making the assessment.

It is next said that a special lien is retained in favor of the State on the land, and that this confers upon the collector the right to sell, without regard to ownership. Counsel rely upon the 40th section of the act in support of this position. The section is in these words: “ All taxes imposed by the provisions of this act, shall be preferred to all payments, executions, incum-brances, and liens of any description whatever, and shall be, from the first day of May in each and every year, a lien upon all the real estate of the person assessed, situate and being in the county in which the assessment is made.” Hutch. Code, p. 193. This section, in the clearest manner, establishes the very position we took in the outset, that the •person and not the thing, must be assessed, and charged with the payment of the tax. The lien is created and attaches to the real estate of the person assessed. Suppose there is no “ person ” assessed, is there any lien created ? Here there was no person assessed; how is the lien contended for by counsel to invest the collector with authority to make the sale ? The land is only a thing, and owes no duty to the government, and can be subjected to no disabilities for not contributing to its support. The government resorts to the land as a means of ascertaining the extent of the duties which a certain individual owes to the government in the shape of a tax, and to compel him, if necessary, to perform those duties. When the tax is legally imposed upon the individual, the lien is then created upon his land. If no tax be assessed against the owner, there can be none for the reasons stated against his property; at least the legislature has not so declared.

But it is said that the form of the deed required to be made by the collector, as given in the 31st section of the act, proceeds upon the idea that the name of the owner might not only be omitted in making the assessment, but was not necessary even to be known to the collector, or noticed by him in making and consummating the sale. It may be true, that it is not necessary for the deed executed by the collector, to disclose the fact of ownership, or the name of the person in default in paying the tax, on account of which the land was sold. But this proves nothing as to requirements of the law in regard to other duties to be performed bjT other officers, or even by the same officer. The legislature merely desired to abbreviate the deed, and to render it as simple in form as possible. This was done to save expense, and to make the duty one which could be easily per— formed by the collector, without professional skill or aid.

Admitting, however, that if this section stood alone, it would-tend to sustain the views of counsel, it must, nevertheless, be construed with reference to the whole law, as well that which precedes as that which follows. The 30th section requires the clerk of the probate court of each county to keep a “ file book” in which he shall enter a list of all lands sold for taxes, together with the owner’s name, the name of the purchaser, and the date of the sale. "Where is the clerk to look but to the assessment list, or to the list furnished by the collector for the name of the owner of the land 1 Suppose that from the assessment list, and evidence supplied by the collector after making the sale, the clerk shall be unable to make out the file book and to put the name of the owner of the land sold thereon, as required by law, can the sale be treated as valid or legal ? It must not only, be authorized by law, but it must be legally made and legally consummated. This file book is the act of consummation required ; by the law. It is intended to furnish ready and easy information-to the owner of the land, so that he may redeem it within the time limited by law. If from the assessment no such- book, could be made by the clerk as required by law, containing the name of the owner, the sale would be held void.

Many other points have been discussed by counsel with ability ; but as the main points have been noticed and decided, it is not deemed necessary to pursue further the investigation.

Decree affirmed.