Opinion
No. 32589.
March 1, 1937. Suggestion of Error Overruled March 29, 1937.
TAXATION.
Land which had been put on assessment roll, properly described as belonging to the United States, without any valuation, and which had been approved by the board, held not subject to back assessment on ground property had escaped taxation, irrespective of whether property belonged to a private landowner or federal government on January 1st of taxing year, since it is only where assessing authorities of county have failed to assess at all that state tax collector is authorized to act (Code 1930, secs. 3120, 3122, 6991).
APPEAL from circuit court of Perry county. HON.W.J. PACK, Judge.
E.C. Fishel, of Hattiesburg, for appellant.
The title to these lands had not been accepted even by the United States Department of Agriculture until in the month of May 1934. The field examination was made by the United States Department of Agriculture on June 4, 1934. The Department of Justice approved the title by letter dated May 24, 1934, which was a letter of acceptance of the title, with the exception of one or two tracts therein excepted. The deeds were then recorded June 4, 1934. The J.J. Newman Lumber Company not receiving its pay for said lands until long after June 4, 1934.
The United States Government could acquire this land only in the manner provided by law; that is, either by condemnation or by purchase. It was attempting to acquire it by purchase and in so acquiring it, the title could only be vested in the United States in the manner provided by law and did not vest in the United States except and until the things necessary to be done as provided by United States statutes had been complied with. These statutes are found in U.S.C.A. Title 16.
The options given by J.J. Newman Lumber Company to the United States provided that the vendors were to show an established title to the above described lands satisfactory to the Attorney General of the United States, or if they did not, then in that event the United States, if deemed advisable, would institute proceedings for the condemnation of said lands. Therefore, under the law and under the contract (option), title to the lands had to be first approved by the Secretary of Agriculture and then approved by the Attorney General of the United States before title could pass.
4 Thompson on Real Property, pars. 3861, 3866.
A conditional delivery is one which passes the deed from the possession of the grantor, but is not to be completed by possession in the grantee, or a third person as his agent, until the happening of a specified event.
Bouvier's Law Dictionary, page 502; 18 C.J. page 206, sec. 105, and page 207, sec. 111.
From the foregoing authorities it is evident that the acts between Goode Montgomery and Lamar Hennington on December 28, 1933, were, so far as the grantor was concerned, only a conditional delivery, and so far as the grantee was concerned, it was only a conditional acceptance.
It is essential to the validity of a deed that there be an acceptance of the instrument by the grantee.
18 C.J. page 212, sec. 119, page 213, sec. 122, and page 214, sec. 123; Kearny v. Jeffries, 48 Miss. 343; McGehee v. White, 31 Miss. 41.
Therefore, if the title had not passed finally into the United States, and the execution and delivery of these deeds was a conditional acceptance, as is reflected by the whole record, then title to said lands was then in an individual on January 1, 1934, and the taxes for the year 1934 were a lien from and after January 1, 1934, as provided in section 3120 of the Mississippi Code of 1930.
Adams v. Lamb Fish Lbr. Co., 114 Miss. 534, 75 So. 378; State v. Dutton, 117 Miss. 391, 78 So. 146; Wilson v. City of Lexington, 121 So. 859, 153 Miss. 212.
By section 3132 of the Code, the taxpayer is required to furnish a list of lands owned by him as of January 1st. The taxpayer did not do this.
Sections 3142, 3148, Code of 1930; Gully v. Jackson International Co., 145 So. 905, 165 Miss. 103.
It is not material to the state's right to collect back taxes, how the property happened to be omitted.
61 C.J. 174.
This record, I submit, shows that these lands belonged to appellee on January 1, 1934, and appellee could not assert an attempted assessment to the United States as being of any benefit to him. I am not unmindful of the case of Long Bell Co. v. McLendon, 127 Miss. 636, 90 So. 356, and the holding therein; but that case can and does differentiate itself from this case. There the owner of the land was claiming against the purchaser at a tax sale. The land had been assessed as "vacant" and was given no value, and the court dealt with the presumption that this meant that the Board of Supervisors had determined that the land had no value. In the case at bar, the Board of Supervisors determined no such question. If they determined any question, they merely determined that in their opinion the United States Government was the owner of the land, and therefore it was non-taxable.
The assessment rolls are only prima facie correct, and they are rebuttable.
Adams v. Clarke, 31 So. 216, 80 Miss. 134; Hillman Land Iron Co. v. Commonwealth, 148 Ky. 331, 146 S.W. 776.
Under section 6991, in light of the foregoing authorities, I respectfully submit that this is a typical case of property escaping taxation, and one peculiarly falling within the line of duty of the State Tax Collector.
Gloster Lbr. Co. v. Adams Co., 163 So. 541, 173 Miss. 865.
Is the sovereign impotent to assess this land? Will the courts of our land say that we will open the gates of fraud, whereby any landowner, by whatever means he may get his deeds on record conveying his lands to the United States Government, can escape paying his just share of taxes, even though title still remains in him? I respectfully submit that the same should not be and that same is not the law of our land.
Lamar Hennington and Heidelberg Roberts, all of Hattiesburg, for appellee.
The record affirmatively shows that the land in question did not belong to appellee on January 1, 1934, but that it belonged on that date to the United States of America. There were four deeds bearing date of December 26, 1933, executed by the J.J. Newman Lumber Company, a corporation, to the United States of America. These deeds were actually executed and physically delivered to the United States of America prior to January 1, 1934.
There was no evidence in this record to show that the delivery of the deed on the part of the J.J. Newman Lumber Company was a conditional delivery. But even if the delivery of the deed at the time was a conditional delivery, and even if it was not presently accepted, still, when it was accepted title passed as of the date of the deed. Title to property vests upon the delivery of a deed thereto.
Cannon v. Holburg Mercantile Co., 108 Miss. 102, 66 So. 400; Bethea v. McCullough, 70 So. 680; Rhode Island Ins. Co. v. Walden, 116 So. 693; 18 C.J., pages 197, 200, 216; Cummings v. Newell, 90 N.W. 311; Basquet v. Brown, 152 Miss. 171, 119 So. 166; Orleans v. New Orleans Land Co., 70 So. 27, 138 La. 32.
The officers of the land department are presumed to have fulfilled every requisite which the discharge of their duty demands, their proceedings are presumed regular and their decisions are not assailable collaterally.
Cunningham v. Ashley, 14 How. 377, 14 L.Ed. 462; McGovern v. New York, 234 N.Y. 377, 138 N.E. 26, 25 A.L.R. 1442.
A grant of public lands raises a presumption that every prerequisite has been performed and consequently no negligence or omission of the officers of government anterior to its emanation can affect it.
Patterson v. Jenks, 2 Pet. 216, 7 L.Ed. 402.
A patent of public lands supports a presumption that all the previous requisites of the law have been complied with.
Polk v. Wendal, 9 Cranch 87, 3 L.Ed. 665; Polk v. Wendell, 5 Wheat 293, 5 L.Ed. 92; Doe, ex dem. Patterson v. Wynn, 11 Wheat. 380, 6 L.Ed. 500; Minter v. Crommelin, 18 How. 87, 15 L.Ed. 279; Sparks v. Pierce, 115 U.S. 408, 29 L.Ed. 428; United States v. Maxwell Land Grant Co., 121 U.S. 325, 30 L.Ed. 949; Moffat v. United States, 112 U.S. 24, 28 L.Ed. 623; Colorado Coal Iron Co. v. United States, 123 U.S. 307, 31 L.Ed. 182.
A patent is presumptive evidence that all previous steps necessary to its legal issuance were taken.
Bagnell v. Broderick, 13 Pet. 436, 10 L.Ed. 235.
The burden of proof in the trial court was on the State Tax Collector.
Whittle v. City of Hattiesburg, 132 Miss. 808, 96 So. 741; Knox v. Dantzler Lbr. Co., 148 Miss. 834, 114 So. 873; Hooper v. State, 37 So. 662.
In order to prove that the property was subject to taxation, it was essential to prove that it was property privately owned, that is to say, that title was not vested in the United States government.
Lyon Co. v. Ratliff, 129 Miss. 342, 92 So. 229.
We respectfully submit that not only was the burden not upon the J.J. Newman Lumber Company to show that the preliminary steps provided for in sections 513 to 517, inclusive, U.S. Code Annotated, Title 16, had been taken, but also the burden was not on the J.J. Newman Lumber Company to show that a deed had been executed or delivered. The burden was on the State Tax Collector to show that the property was privately owned. The State Tax Collector wholly failed to meet the burden of proof imposed upon him by law, and for that reason alone the said Tax Collector was not in the trial court and is not here entitled to prevail.
The assessment of the land in question to the United States of America as set forth in the record and in the statement of facts is res adjudicata.
George County Bridge Co. v. Catlett, 135 So. 217, 161 Miss. 120; Long-Bell Lbr. Co. v. McLendon, 127 Miss. 636, 90 So. 356; J.B. Gully v. J.J. Newman Lbr. Co., 168 So. 258, 261.
A decision of the board that certain property is not assessable precludes such property from being assessed as omitted property.
68 C.J. 831.
Under the law as it exists in this state, even if the land were not owned by the United States of America on January 1, 1934, and even if the assessment were void, the State Tax Collector was without power to back assess the said land. The only authority that the State Tax Collector has to back assess lands is the statute existing in this state which we have heretofore identified. There is no authority of law for the State Tax Collector to do that which he has attempted to do here in making the back assessment. His efforts are without authority, are void, and were properly set aside and held for naught by the circuit court of Perry county, Mississippi.
Adams v. Luce, 87 Miss. 220, 39 So. 418; Long-Bell Lbr. Co. v. McLendon, 127 Miss. 636, 90 So. 356; Union Land Timber Co. v. Pearl River County, 106 So. 277, 141 Miss. 131; Miller v. Grand Lodge of Miss. A.F. A.M., 114 So. 37.
There is a difference between the power of the taxing authorities generally to assess property which has in fact been assessed but the assessment void for some reason, and the authority of the State Revenue Agent or State Tax Collector to back assess it, which has in fact appeared on the assessment roll though the roll be void, for the reason that the sole authority of the State Tax Collector is derived from the statute itself.
City of Greenwood v. Humphreys, 127 So. 694.
This court aligns itself with other courts in holding that although property may be owned by an individual on the date the lien thereon is fixed for taxes, still, if thereafter it is acquired by the United States or any subdivision of the government, the taxing officers can take no further steps looking toward the collection of a tax on such property. In other words, the very minute the government or governmental subdivision acquires property, all further steps looking toward the collection of taxes on that property must immediately stop. Even if we concede for the sake of argument that the State Tax Commission's contention about when title passed in this case was correct, still, when the federal government did acquire title there could thereafter be no further steps taken by the taxing authorities in an effort to collect a tax on the land involved.
City of Laurel v. Weems, 100 Miss. 335, 56 So. 451; Alvis v. Hicks, 116 So. 612, 150 Miss. 204.
The circuit court of Perry county, Mississippi, was correct in the opinion and judgment from which this appeal was taken. The court was correct in holding that the State Tax Collector did not have a lawful right to back assess the property. It was also correct in holding that the title to the land in question was vested in the United States government on January 1, 1934.
Goode Montgomery, of Laurel, amicus curiae.
The rule originally adopted as to the date on which land became non-taxable was the date of the execution of the deed and delivery to the local representative of the Department of Agriculture. The State Tax Collector, as shown by the pleadings in this case, has construed the option and contract to mean that the land remains taxable until finally approved by the Attorney General of the United States. Pending a decision of this court, the Department of Agriculture now follows this construction by this state official and has retained several thousands of dollars to assure the payment of taxes for 1936 and 1937 on deeds signed and delivered during the latter days of 1935 and 1936 but which were not finally approved by the Attorney General until the succeeding year. This means withholding the payment of these sums for approximately a year.
In examining the records of this case, it is found that there are one or more questions peculiar to this case on which the decision of the court might possibly be based without the court construing these contracts and announcing the rule which would guide the officials of the state of Mississippi and the Department of Agriculture in determining at what stage of the proceedings the land would become non-taxable.
Since the above question affects a large group of citizens in the State of Mississippi as well as the Department of Agriculture of the United States, we respectfully request the court to construe the opinions, contracts and laws pertaining thereto insofar as can reasonably be done under the issues of this case and to announce a rule which will guide the taxing authorities of Mississippi and the United States Department of Agriculture so that all necessary funds may be retained to assure the payment of these taxes but that no excessive amounts for unnecessary periods be retained. Without desiring to influence the decision of the court on behalf of either appellant or appellee, I respectfully submit the request that the above issue be decided.
The State Tax Collector, acting under authority of section 6991, Code 1930, attempted to back assess, for the year 1934, the J.J. Newman Lumber Company with 75,000 acres of cut-over land in Perry county, upon the ground that it had escaped taxation by reason of not having been assessed for that year. The tax assessor of the county had put the land on the assessment roll properly described as belonging to the United States without any valuation. At the regular meeting of the board held for that purpose the assessment roll was approved. On appeal to the circuit court, that court held against the contention of the State Tax Collector. From that judgment the State Tax Collector prosecutes this appeal.
The federal government acquired title to the land involved under the authority of chapter 186, sections 4, 5, 6, 8, 10, and 11, 36 Stat. 962, and 963, which will be found in U.S.C.A., title 16, sections 513, 515, 517, 519, and 521. Section 513 provides for the creation of the National Forest Reservation Commission, and, together with the other sections referred to, for the purchase by the federal government, through the Secretary of Agriculture, of cut-over or denuded lands for the purposes of reforestation and the regulation of the flow of navigable streams. The federal government purchased the land from the J.J. Newman Lumber Company; the deed was executed by the lumber company on December 26, 1933, and delivered to an agent for the federal government authorized to receive the same on the 28th day of December, 1933, and was accepted by the government upon condition that a "safe title" was conveyed. The title was not approved by the government until some time in May, 1934, and the deed was not recorded until June of that year.
Taxes assessed against land are a lien thereon and bind the land from the first day of January of the year in which the assessment is made, and in addition constitute a debt recoverable by action. Sections 3120 and 3122, Code 1930. The State Tax Collector proceeded upon the idea that the government did not acquire the land until the title was approved by it, which was in May after the execution of the deed and, therefore, the lumber company owned it up to that time and was liable for the taxes for that year. In other words, under those facts the contention of the tax collector is that the land had escaped taxation by reason of not being assessed.
We pass the question as to the ownership of the land on the 1st day of January, 1934, and affirm the judgment of the circuit court upon the ground that the land had not escaped taxation for that year on account of not being assessed in the meaning of section 6991, Code 1930, as construed by Long Bell Co. v. McLendon, 127 Miss. 636, 90 So. 356, 357, and Adams v. Luce, 87 Miss. 220, 39 So. 418. It was held in the Long Bell Company Case that land could not be back assessed through the State Tax Collector where it appeared on the assessment roll, approved by the board of supervisors, as vacant with no value. In discussing the question the court used this language:
"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 `unassessed' 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 withheld 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 "escape," ex proprio 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 the assessing authorities and the board of supervisors, in due course under the law, has not escaped taxation nor been `left unassessed 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."
The assessment had come under the eye of the board of supervisors; the board had approved the assessment showing ownership of land in the federal government. That action was final so far as the State Tax Collector was concerned, regardless of whether it was legal or illegal. It is only where the assessing authorities of the county have failed to assess at all that the State Tax Collector is authorized to act.
Affirmed.