Stern v. Parker

For more than a generation, and especially since the decision in Eureka Lbr. Co. v. Terrell (Miss.), 48 So. 628, it has been understood as the settled rule in this State that when a parcel of land has been assessed by a valid surface description, as for instance by the government survey, without any reservations or exceptions or limitations either in the particular assessment or elsewhere on the roll, this would be to the same effect, so far as the description is concerned, as if it were a private deed of conveyance and would include every interest in the land so described and not only the surface but every estate, horizontal or otherwise, and whether above or below the surface, although separately owned.

This, in fact, is the effect of the opening section in the division on "Assessment" in the Code of 1942, Section 9744, a section which has been in our statutes for more than a century. By that section the assessment of land is a proceeding in rem, it being immaterial that the land is not assessed to the true owner, but when assessed under a valid description the assessment shall bind all those interested in it, in which connection it must be noted that under Sections 9935 and 9936, Code 1942, the tax sale under such an assessment, when shown by the certified list thereof, shall vest in the State or the individual purchaser, as the case may be, "a perfect title to the land sold for taxes."

And for three quarters of a century, say as far back as Horne v. Green, 52 Miss. 452, it has been the settled rule, under statutes of which Sections 9789 and 9790, Code 1942, are the present representatives, that the final judgment of the taxing authorities is conclusive, in the absence of objections thereto presented before the said authorities in the statutory manner and at the time and place designated by the statute, as to all issues resting in pais, as for instance "listing the property to the wrong person and the like", which would include, of course, the assessment of an interest therein to the wrong person.

Here the assessment was of the appropriate surface description without any reservation or qualification or limitation appearing anywhere on the assessment rolls. It included therefore appellants' horizontal estate and inasmuch as they made no objections in writing as required by Section 9790, Code 1942, the assessment so made became unassailable as to the matter in pais upon which appellants seek now to rely. And this was the ultimate basis upon which our original opinion in this case is founded, as an unbiased examination of it will disclose.

Appellants now concede, as we understand their argument in effect to be, that all that has above been said would be true except for the more recently enacted Section 9770, Code 1942, which they say mandatorily requires that an estate separately owned and such as here involved shall be separately assessed; that Section 9769 places the duty upon the assessor to ascertain the existence of these separate estates in the same piece of land; that the owner of the separate estate is under no obligation in respect to the assessment until he is called upon by the assessor to render a list, etc., and that if the assessor does not call upon the owner of the separate estate for his list, and leaves the separate estate off the roll, this will produce the result that the separate estate has not been assessed at all, against which the only remedy would be a back tax assessment.

And, finally, appellants argue that if they had appeared and filed written objections as required by said Sections 9789 and 9790, there would have been nothing that the taxing authorities could have done to give relief from the assessment as made. They fail to point out wherein or why the taxing authorities could not have given the appropriate relief had thy filed written objections showing thereby that their one-half interest in the minerals were assessed in such a way as to make the assessment of that interest an assessment to the wrong person; and we think Section 9789 is broad enough in its language to authorize the relief, but if not so, the statute by allowing valid objections to be filed, would authorize by implication the doing of that which would take care of such objections, if shown to be well founded. It is an awkward argument as made by appellants that the proper course here is that the taxing authorities ought to back assess this mineral interest as a separate assessment for each of the past fifteen years, and urge at the same time the contention that the said authorities could not have separately assessed it for any one of those years on a written objection at the time the original assessment was made.

Appellants are, therefore, estopped by judgment and it was unnecessary for us to have said anything in our original opinion about an estoppel in pais. We are of the opinion that Section 9770 and Section 9769, Code 1942, were not intended to displace the policy which has so long prevailed in this State as expressed in Sections 9789 and 9790, Code 1942, and the other sections mentioned herein, or to engraft upon them any such radical exceptions as those contended for by appellants in this case.

Undoubtedly it was a purpose of Section 9770, Code 1942, to allow the assessments of the separate interests therein mentioned to be so made as to relieve the owners of such interests of any concern or responsibility as to any other interest in the described parcel of land, but if this section were of a self-executing and mandatory effect, and when taken in connection with Section 9769, Code 1942, places the burden of the duty on the assessor, as appellants contend, then the assessor would be required to examine the thousands of deeds of record in his county to ascertain on precisely what lands and what particular separate rights were owned in the various descriptions in his county and who owned them, a task which would require the prolonged services of persons highly skilled in the law, and assessors are not required so to be and they are not sufficiently paid to enable them to employ any such services. We are not called on in this case to attempt a categorical statement as to the purposes of Sections 9769 and 9770, Code 1942, but we do say, and are safe in saying, that they have no such mandatory and self-executing effect as that contended for by appellants in this case, which contention in its final analysis is, as already mentioned, that in any event if there has been no separate assessment of the separate interest, there has been no assessment of it at all.

Suggestion of error overruled.

Sydney Smith, C.J., took no part.