Hunter v. Bennett , 149 Miss. 368 ( 1928 )

^* Corpus Juris-Cyc. References: Evidence, 22CJ, p. 1006, n. 66; Taxation, 37Cyc, p. 1064, n. 78; p. 1069, n. 20; p. 1096, n. 88; p. 1479, n. 88; p. 1488, n. 61. The appellant, C.W. Hunter, filed his bill in the chancery court of Coahoma county, the purpose of which was to quiet title to lots of land in sections 5 and 8, township 26, range 7 west, in said county. Attached to the bill was Exhibit A, which might be termed an abstract of title, and which, in our opinion, constitutes a deraignment of title.

In the court below, upon an answer denying the allegations of the bill filed by the defendants O.A. Bennett and others, the complainant's title to the land was put in issue. Especially is the title based upon tax sales growing out of an assessment of taxes for the year 1892 and an assessment of taxes for the year 1913, the complainant having acquired title by virtue of these assessments from and as a direct result of a sale of the lands for taxes.

The court below dismissed the bill on two grounds, only one of which will be considered by us, as the complainant's title depends upon the validity of the assessments above mentioned; the court holding that complainant acquired no title by virtue of the several tax sales. As to said tax sales, for convenience, and in order that this opinion may be more readily understood, we set out the facts which we think necessary, in connection with the several points presented as to the validity or invalidity of said sales.

1. As to the tax title acquired from a sale of these lands in 1893 conceding that they were in the state of Mississippi, and that the chancery court of Coahoma county had jurisdiction, which we do not decide, two propositions were presented: (a) Whether or not the assessment roll was void, because not filed according to law; and (b) whether or not the assessment roll was void, because received and approved, and the taxes thereon levied, at a meeting held at a place other than the courthouse.

The meeting of the board of supervisors of Coahoma county, which dealt with this assessment roll, was held on the first Monday of July, 1892, in the chancery clerk's office at Friar's Point, and at that time the said chancery clerk's office was located in the jail building, which was not connected with the courthouse, was some little distance away, just outside the courthouse lot, and not thereon.

The minutes of the board of supervisors at this meeting are silent as to the filing of the assessment roll, and the chancellor was warranted in finding, from the testimony of Chatters and others, that the assessment roll was not filed at that time, and it was shown orally that the time was extended to the assessor to file the roll at the August meeting of the board.

In August the minutes are silent as to the filing of the assessment roll.

At the September meeting an order appears on the minutes of the board reciting that the assessment rolls of the county, as "heretofore presented," be approved.

The testimony affirmatively shows that the assessment roll for the first district of Coahoma county was not filed on the first Monday of July, 1892, nor was there any extension of time entered on the minutes at that meeting.

Boards of supervisors have a special and limited jurisdiction, and oral testimony may not be offered to approve the action of such boards. Boards of supervisors must speak through and by their minutes. In order for an extension of time to be valid, it was necessary that the minutes should show the granting of such extension, and, in the absence of such showing, no legal extension of time was granted. The failure of the assessor to file his roll within the time prescribed by law makes it a void or dead roll within the meaning of the law, and any levy of taxes or any tax sale based on such roll is absolutely void. SeeStovall v. Conner, 58 Miss. 138; Mitchum v. McInnis,60 Miss. 945; Fletcher v. Trewalla, 60 Miss. 965; Carlisle v.Chrestman, 69 Miss. 392, 12 So. 257; Pearce v. Perkins,70 Miss. 276, 12 So. 205; Brothers v. Beck, 75 Miss. 486, 22 So. 944; McGuire v. Union Investment Co., 76 Miss. 868, 25 So. 367; Bennett v. Maxwell, 82 Miss. 70, 34 So. 226; Seals v.Perkins, 96 Miss. 704, 51 So. 806, 52 So. 584.

Counsel for appellant, however, argues that the principle laid down, supra, and the cases cited therein, are inapplicable, because any irregularity in the filing and approval thereof has been cured by the provisions of section 3783 of the Code of 1892, which reads as follows:

"The failure of the assessor to certify and swear to his assessment roll, or to return it on the day named for its return, shall not affect the validity of the assessment if approved by the board of supervisors, or by operation of law."

The fact that the board of supervisors, at its September meeting, approved the roll, does not make it valid. The cases cited above were, for the major part, decided before the adoption of the Code of 1892, yet the corresponding section in the Code of 1880, being section 500 thereof, is exactly the same as that in the Code of 1892, except that in the latter section the concluding words are "or by operation of law." The addition of these words did not cure the invalidity, for the reason that the assessment roll was approved by the board and not by operation of law. Therefore the cases cited, supra, are applicable.

This is obvious, but in the case of McGuire v. UnionInvestment Co., 76 Miss. 868, 25 So. 367, it was held that the view contended for by appellant was "maintainable only when section 3783" was "wrested from all the other provisions of the Code, which constitute one whole, harmonious scheme of assessments." The court further said in that case:

"There is a vast difference between a failure to return an assessment roll on the very day named for its return, followed by compliance on the board's part with all the other requirements of law, and a failure to return for two months, and an approval, without opportunity to taxpayers to make objections, on the very day fixed by the board's order for its return. The statute was designed to cure trifling and immaterial delay in returning the assessment, but surely not to authorize assessors to return and boards to approve at their unrestrained pleasure at any time." See, also, Womack v. Central Lbr. Co., 131 Miss. 201, 94 So. 2.

Appellant also insists that it is shown that eleven pages immediately following the recapitulation of the assessments were missing from the assessment roll, and that there was therefore an incomplete record of the making thereof; that on these pages there might have appeared the filing date of the roll showing it to have been filed in time, and that it must be now presumed that such filing date appeared therein, and that the roll was actually filed at the proper time, citing, in support thereof, the case ofHerndon v. Mayfield, 79 Miss. 533, 31 So. 104.

For several reasons, that case does not apply. There it was a portion of the record of the proceedings of the board of supervisors of the meeting at which the roll was to have been approved that was destroyed. The remaining portion did not show any action on the part of the board approving the roll, nor was there any proof offered showing that the roll had not been approved. And, in that case, the tax collector's deed created a presumption that the assessment roll had been approved, and, since there was no evidence to show that it had not been approved, it was necessarily held that the presumption controlled.

In the instant case, however, it affirmatively appears that the roll was not filed at the July meeting, and therefore the presumption cannot be indulged, and necessarily yields to the proof.

2. The record shows, without contradiction, that the July and September meetings of the board of supervisors were not held "at the courthouse," but were held in the chancery clerk's office in the jail, which was not part of the courthouse, nor connected therewith. Since this is true, the action of the board of supervisors in approving the roll and in levying taxes thereon was absolutely void. Harris v. State, 72 Miss. 960, 18 So. 387, 33 L.R.A. 85; Sexton v. Coahoma County, 86 Miss. 380, 38 So. 636.

Appellant urges the case of Johnson v. Yazoo County,113 Miss. 435, 74 So. 321, stating that therein is set forth a broader and better rule; but said case is not in conflict with the Harris and Sexton cases, supra, for the reason that the Johnson case was decided after the statute had been amended so as to permit boards of supervisors to meet either at the courthouse or in the chancery clerk's office, and, obviously, the statute was amended to meet the announcement of this court in theHarris and Sexton cases, supra.

For these reasons, the tax sales to the state in the year 1893, under the assessment made, and the taxes levied for the year 1892, were absolutely void, and the state acquired no title thereby, and consequently Hunter acquired no title thereunder.

As to sales based upon the assessment roll of 1913, the board of supervisors of Coahoma county met in the First district at Friar's Point on the first Monday of July, 1913, and then and there an order was passed extending the time within which the assessor could file his roll to the first Monday of August, 1913. The regular August meeting was held at Clarksdale, and the board, being unable to finish the business before it, adjourned to meet at Friar's Point on Monday, August 11, 1913, for the purpose of inspecting and accepting the land roll of the county. There is nothing on the minutes at the regular August meeting showing that the roll had, at that time, been filed by the assessor. The roll itself shows that the assessor made the affidavit thereon on August 11, 1913, and that it was filed by the clerk on August 15, 1913. At the adjourned August 11th meeting, however, at Friar's Point, an order appears on the minute book reciting that the land rolls which "were heretofore filed in the office of the clerk in Clarksdale in the Second district of said county on the first Monday of August" be accepted. It also appears from the minutes that the board ordered that notice of the filing of the roll be made, and that objections would be heard thereto at the next meeting of the board.

At the September meeting of the board of supervisors at Friar's Point taxes were levied. An order was thereupon put upon the minutes adjourning the board to meet in Clarksdale on the next day for the purpose of examining the rolls of the assessor and hearing objections thereto. On September 3d, pursuant to this order, an adjourned meeting was held in Clarksdale, where the assessment rolls were approved.

The Act of February 19, 1892, sections 11 and 12, chapter 93, dividing Coahoma county into two districts, provides that the assessor shall file two rolls, one at Friar's Point in the First district, and the other at Clarksdale, in the Second district. It also provides that the board of supervisors at the proper meeting in each district shall approve such part of the roll as relates to the property in that district; the board in each case acting as if the rolls related to different counties. If the recital in the minutes of the board of supervisors at its August 11th adjourned meeting be taken as true, then the roll was not filed according to the provisions of the statute dividing the county into two districts, because that order recited that the roll was filed at Clarksdale.

If, however, the date of the filing of the roll, as shown by the roll itself, controls, not only is there doubt as to where the roll was filed, but it also conclusively appears that the roll was not filed until fifteen days after the date prescribed by the order of the board of supervisors granting the assessor an extension of time within which to file his roll. The tax sales, therefore, would have been made under the following circumstances: The roll being filed on August 15th, notice was given that objections thereto would be heard by the board at its regular September meeting. The board met on September 1st, and levied the taxes, not hearing objections to the roll, however, at that time, but adjourning to meet at Clarksdale on the following day, where objections to the rolls were heard, and the rolls then approved. This procedure constituted such a total departure from the requirements of law concerning the assessment of property and the levying of taxes thereon as to render any tax sales conducted thereunder totally void. This case is similar in its facts to that of McGuire v. Union Investment Co., 76 Miss. 868, 25 So. 367, which case is controlling here.

There is another reason why these tax sales were void. The Act of February 19, 1892, provided that the board of supervisors of Coahoma county should hold its meetings alternately, meeting first at Friar's Point in the First district, and then at Clarksdale, in the Second district. The regular September, 1913, meeting was held in Friar's Point on Monday, the first day of the month. The board did not, at that meeting, approve the assessment roll, but adjourned to meet in Clarksdale on the 3d day of the month, and at that adjourned meeting the roll was approved.

In the case of Smith v. Nelson, 57 Miss. 138, this court held that the boards of supervisors have no power to adjourn to a time not appointed by law, and any levy of taxes made at such adjourned meeting is void, and that a sale thereunder passes no title. The court in that case said, among other things, as follows:

"Our boards of supervisors are partly legislative and partly judicial in their character. They are judicial as to their times of meeting, that is to say, their terms are fixed by law, duration limited, and the mode of calling special terms carefully prescribed by statute. . . . They have no more power to adjourn by resolution or order from one term to a day intermediate between the day of adjournment and their next regular meeting, than the Supreme, the circuit, or the chancery courts have."

Since the decision of that case, section 298 of the Code of 1906 (section 3969, Hemingway's 1927 Code), has been enacted, which provides that board of supervisors may adjourn to meet at a certain time. However, this statute does not give them the power to adjourn to meet at any other place than that which is provided by law. The reasoning of the court in Smith v. Nelson, supra, is therefore applicable to this case, and the adjourned meeting held at Clarksdale was void, because the board could not adjourn from the First district to meet in the Second district, and pass upon the rolls of the First district. It was at this adjourned meeting at Clarksdale, in the Second district, that the rolls were approved, and, under the special act dividing the county of Coahoma into districts, the approval of the roll outside of the district in which the land was situated was a nullity, because made directly in conflict with that act.

The case of Yazoo Delta Investment Co. v. Suddoth, 70 Miss. 416, 12 So. 246, is conclusive of this proposition; the court in that opinion saying that:

"It is too clear for contention that the action of the board at its meeting at Friar's Point was a nullity in so far as it related to the assessment of the lands situated in the Second district, and its direction to the clerk to change the roll of that district afforded no authority to him so to do. The act of the board and of its clerk were equally unlawful, and constituted nothing more than a spoliation of the roll as returned by the assessor."

It follows that we think these tax sales were essential in the state of this record to the validity of complainant's title. That being true, and having ascertained that the tax sales were void, and this being a suit brought by complainant to quiet his title and cancel the claim of title asserted by the defendants herein, the complainant must recover upon the strength of his own title, whether the defendants have title or not. Hart v. Bloomfield,66 Miss. 100, 5 So. 620; Hale v. Neilson, 112 Miss. 291, 72 So. 1011; Gilchrist-Fordney Co. v. Keyes, 113 Miss. 742, 74 So. 619; Robert v. Lewis, 119 Miss. 628, 81 So. 481.

We do not deem it necessary to go into the other questions decided by the chancellor, as this is conclusive of the issue here presented.

Affirmed.