Opinion
No. 35318.
May 10, 1943.
1. EQUITY.
A bill to confirm tax title to land was not insufficient on ground that no certified copy of the list of sales made to the state was made an exhibit to the bill (Code 1930, sec. 402).
2. TAXATION.
In a bill to confirm a tax title to land, where no certified copy of the list of sales is made an exhibit, it is necessary to allege in terms of fact and not by way of mere legal conclusion that every successive step, essential to the validity of the tax sale was had and taken by the taxing authorities, inclusive from the original assessment by the tax assessor down to the sale itself (Code 1930, sec. 402).
3. TAXATION.
One of the successive steps necessary to be taken to the validity of tax sale is legal process upon or notice to the taxpayer prior to the equalization of the assessment roll.
4. EQUITY. Taxation.
A bill to confirm tax title, which failed to contain averment as to legal process on or notice to taxpaper prior to equalization of assessment roll, was insufficient to sustain a decree in absence of the certified list of sales made to the state as an exhibit (Code 1930, sec. 402).
APPEAL from chancery court of Jones county, HON. A.B. AMIS, SR., Chancellor.
J.R. Buchanan and B.F. Carter, both of Laurel, for appellants.
Neither the original bill of complaint nor the amended bill of complaint was sufficient on which to base a decree pro confesso or final decree for confirmation of a tax title.
In a suit to confirm a tax title it is essential that the complainant fully deraign his title from the acquisition by the purchaser at the tax sale, which was the State of Mississippi in this case, down to the present record of his deed or other muniment of title. This deraignment, of necessity, should include an allegation relative to the application for forfeited tax patent by the purchaser from the state, which application is held to be a part of the patentee's muniment of title.
State ex rel. McCullen, Land Commissioner et al., v. Adams, 185 Miss. 606, 188 So. 551.
In addition to the averment relative to the application for forfeited tax land patent, it was essential that the complainant make an exhibit to his bill a certified copy of the application for forfeited tax land patent, since such applications are not of record anywhere, but merely on file in the office of the State Land Commissioner.
Griffith's Chancery Practice, Secs. 166-a, 213.
A bill of complaint to confirm a tax title which does not properly deraign the title from the date of tax sale showing all of the muniments of title through which complainant claims title should be dismissed, since, in order to entitle complainant to a decree of confirmation, the bill must, by its own averments, state a case entitling complainant to relief.
Neither the original bill nor the amended bill make as an exhibit thereto the list of lands sold to the state on September 19, 1932, for state and county taxes alleged to have been due for the year 1931. The list of lands sold to the state takes the place of a tax deed to an individual purchaser. The tax deed, or in this case the list of lands sold to the state, should have been made an exhibit to the original bill of complaint and to the amended bill of complaint.
Griffith's Chancery Practice, Sec. 220.
Neither the original bill nor the amended bill sets forth, in a detailed narrative, every act and step necessary to be performed by the officers, and each of them, toward a valid tax sale, and therefore the bill does not state a cause of action for the confirmation of a tax title. Since no exhibit was made to either the original bill or the amended bill showing the list of lands sold to the state, there was no prima facie case supplying the necessary averments so as to support a decree pro confesso without proof.
The forfeited tax patent from the State of Mississippi to the City of Laurel, Mississippi, cannot supply the presumptions in favor of exhibited tax deed or list of lands sold to the state. The presumptions in favor of exhibited tax deed or list of lands sold to the state are based upon the statute (Section 1578, Code of 1930), which recites that the tax deed is prima facie evidence of the successive steps and facts necessary to constitute a valid sale. Such a statute should be strictly construed and is limited to the matters which it covers by direct averment. Therefore, we submit that the forfeited tax land patent cannot take the place of the list of lands sold to the state, nor can it supply the necessary averments which would have been supplied by the list of lands sold to the state had it been made an exhibit to the bill of complaint.
The tax title sought to be confirmed by this section is an attempted sale to the State of Mississippi made on September 19, 1932, for state and county taxes alleged to be due for the year 1931. The assessment on which this sale was based was before this same trial court in the case of B.R. Grant v. J.A. Montgomery et al., 193 Miss. 175, 5 So.2d 491. The trial court and the Supreme Court both held the assessment for the years 1930-1931 and tax sale thereunder to be void for want of due process upon the taxpayer and failure to give the notice required by law. We respectfully submit that the trial court in the case at bar should have taken judicial knowledge of its own decision and the decision of the Supreme Court holding the sale to be void for want of due process. Since there was no legal assessment on which to base a levy of taxes in Jones County for the year 1931, the whole tax proceeding was a nullity. There could have been no default in taxes which were never legally assessed, and there was no tax title to be confirmed.
Magee v. Turner, 92 Miss. 438, 46 So. 544; Griffith's Chancery Practice, Sec. 219.
The complainant in a suit to confirm a tax title must prevail, if at all, on the strength of his own title. The defendants had remained in possession of the land in controversy. Therefore it was incumbent upon the complainant, in order to prevail in his action, to show a valid tax assessment, levy and sale both under the statutes and the constitution.
Russell Investment Corporation v. Russell, 182 Miss. 385, 182 So. 102.
Leonard B. Melvin, of Laurel, for appellee.
Section 1578, Code of 1930, which makes a tax deed prima facie evidence of the correctness and of the legality of the successive steps thereto, is a complete answer to the defects assigned by appellees and a cure to the errors here listed by appellees.
Argued orally by B.F. Carter, for appellants, and by Leonard B. Melvin, for appellee.
Appellee filed his bill to confirm a tax title to a lot or parcel of land situated within the corporate limits of the City of Laurel in Jones County, the alleged tax sale having been made on September 19, 1932. Appellants filed no answer, and suffered a decree pro confesso, upon which a final decree was rendered in accordance with the prayer of the bill. From this decree an appeal has been taken, and several grounds have been relied on in support of appellants' contention that the bill was insufficient to support a decree. See Pease Dwyer Co. v. Somers Planting Co., 130 Miss. 147, 156, 93 So. 673.
The sale was made to the state, and it is through a forfeited tax patent from the state that appellee claims. One of the grounds which appellants urge for a reversal is that no certified copy of the list of the sale to the state was made an exhibit to the bill. It is not necessary to exhibit with the bill a certified copy of the list of sales made to the state on a particular sales day, but, when not so done, it is necessary to allege in terms of fact and not by way of mere legal conclusion that every successive step, essential to the validity of the tax sale — alleging the facts as to each essential step — was had and taken by the taxing authorities, inclusive from the original assessment by the tax assessor down to the sale itself. See on this subject Griffith Miss. Chan. Pr., Sec. 220. One of the successive steps necessary to be taken is legal process upon or notice to the taxpayer prior to the equalization of the assessment roll. There is no allegation in the bill whatevery that this essential step was taken.
It is interesting to note in this connection that in Grant v. Montgomery, 193 Miss. 175, 5 So.2d 491, 492, it is stated that a tax sale made in this same county and for a lot in the same city and on this same day was absolutely void, "because of the invalidity of the assessments under which the sales were made, due to the lack of legal process and notice to the taxpayer prior to the equalization and approval of the assessment rolls." Inasmuch as a bill to confirm a tax title must be a sworn bill, Section 402, Code 1930, it may be that complainant knew that no such legal process and notice to the taxpayer had been given or served, and, therefore, could not swear to a bill containing averments contrary to the facts; but however that may be, the stated essential averment is not in the bill, with the result that it is insufficient to sustain a decree, in the absence of the certified list as an exhibit.
The foregoing is enough to dispose of the appeal, but it is also observed that the allegations of the bill as to the original assessment and the proceedings subsequent thereto, so far as averred, refer to the assessment, etc., as having been made for and during the year 1932, and yet the bill proceeds further to aver that the sale was made on September 19, 1932, for the delinquent taxes of the year, 1931. This confusion and contradiction in averment may of itself be enough to render the bill insufficient to support a decree pro confesso, but since the point first mentioned requires a reversal, we do not decide the question presented in this paragraph, nor do we find it necessary to pursue the other questions argued by appellants.
Reversed and remanded.