Opinion
No. 38865.
February 1, 1954.
1. Taxation — notice — minutes of Board thereasto — not subject to impeachment — by parol evidence.
In suit by former record owner to have tax sale declared void wherein it appeared that after assessment roll had been certified to State Tax Commission, that body entered an order directing Board of Supervisors to decrease assessment of uncultivatable lands, in which class the land in question fell, by 25 per cent, and president of Board pursuant to statute called meeting for September 30 and notice of meeting was published in a newspaper which bore date-line of September 26, but Board entered order adjudicating fact that notice was published on September 25, minutes of Board contained every adjudication of fact necessary to confer jurisdiction upon it to consider roll of September 30 and minutes could not be impeached by parol evidence. Secs. 3249, 3252, 9802, Code 1942.
2. Evidence — matter of common knowledge — newspapers published and circulated in advance.
It is matter of common knowledge that in almost every city of land daily morning newspapers are published, and in circulation and may be purchased on the streets the evening before their date.
3. Taxation — required notice given — assessment valid.
In such case, necessary five days' notice was given and assessment was not void for failure to give the required notice. Secs. 3249, 3252, 9802, Code 1942.
4. Tax sales — when concluded — Tax Collector's certificate.
Where on April 6, 1931, tax sale was conducted, being the first Monday of April which was the date fixed by law for such sale, the Tax Collector's certificate of sale which was dated the same date indicated that the sale was concluded on that date. Sec. 3249, Code 1942.
5. Taxation — lands not sold on regular date — Board to fix subsequent date of sale.
Where Board of Supervisors learned that all the lands on which taxes were delinquent had not been sold on April 6, 1931, the date fixed by statute for such sale of such lands, and such sale had been concluded, Board of Supervisors on April 7, 1931, under then applicable statute had authority, the date fixed by law having passed, to order another sale to be held on a subsequent date fixed by the Board. Chap. 25, Laws Ex. Secs. 1931 as amended by Sec. 28, Chap. 188, Laws 1934; Secs. 3249, 3252, Code 1942.
Headnotes as approved by Hall, J.
APPEAL from the chancery court of Perry County; LESTER CLARK, Chancellor.
Fleet C. Hathorn, Jr., Hattiesburg, for appellant.
I. The lower court erred in decreeing that the tax sale of the land in suit on July 6, 1931, was a valid sale, for the following reasons, among others, to-wit:
A. Because the Board of Supervisors of Perry County failed to give the five days' notice required by law for its special meeting of September 30, 1930, whereat the order of said Board purporting finally to approve the assessment of said land for the 1930 taxes was entered; wherefore, the sale of said land to the State of Mississippi on July 6, 1931, for the 1930 taxes allegedly due and delinquent thereon under such unlawful assessment, deprived the owner of his property without due process of law and is thereby rendered void, being violative of Article XIV of the Amendments to the Constitution of the United States, as well as of Sections 14 and 112 of the Mississippi Constitution of 1890, and the statutes of the State governing the assessment and sale of land for ad valorem taxes. Evans v. Bd. of Supervisors of Calhoun County, 192 Miss. 188, 5 So.2d 224; Henderson Molpus v. Gammill, 149 Miss. 576, 111 So. 716; Secs. 3178-9, Code 1930; 61 C.J., Taxation, Sec. 1031 p. 821.
B. July 6, 1931, was not a time fixed by law for a tax sale; and the Board of Supervisors was not authorized to enter an order designating that day for the sale, when on the very day its order was entered, to-wit: April 7, 1931, the Tax Collector was still charged with the power and duty of sale because he had already begun his tax sale at the time appointed by law, April 6, 1931, and said sale had been continued by operation of law to April 7, 1931, under the requirements of Section 3249, Code 1930; and the said statute also provided that a tax sale made at the wrong time should be void. Bass v. Batson, 171 Miss. 273, 157 So. 530; Brougher v. Conley, 62 Miss. 358; Hooper v. Walker, 201 Miss. 158, 29 So.2d 72; Jackson v. Webster, 196 Miss. 778, 18 So.2d 298; Mers. Mfrs. Bank v. State, 200 Miss. 291, 18 So.2d 585; Smith v. Hendrix, 181 Miss. 229, 178 So. 819; State v. Wilkinson, 197 Miss. 628, 20 So.2d 193; White v. Noblin, 183 Miss. 92, 183 So. 914; Secs. 3249, 3252, Code 1930.
II. The lower court erred in decreeing that the defendants (appellees here) acquired title to the land in suit, independent of the validity of said tax sale, by adverse possession under Section 717, Code 1942; for the reason that the evidence conclusively showed that the acts of possession on said land were not continuous for any period of two years before this suit was filed by complainant, and that most of said acts took place after this suit had been filed. Broadus v. Hickman, 210 Miss. 885, 50 So.2d 717; Cohn v. Smith, 94 Miss. 517, 49 So. 611; Cook v. Mason, 160 Miss. 811, 134 So. 139; Dixon v. Cook, 47 Miss. 220; Hooper v. Walker, supra; Houston Bros. v. Lenhart, 136 Miss. 141, 101 So. 289; Leavenworth v. Claughton, 197 Miss. 606, 19 So.2d 815, 20 So.2d 821; Walker v. Polk, 208 Miss. 389, 44 So.2d 391; Secs. 711, 716-7, Code 1942; Chap. 196, Laws 1934.
III. The lower court erred in failing to cancel the said tax sale and defendants' claims to the land in suit as clouds upon the true title of complainant (appellants' intestate), and in dismissing the bill at complainant's cost.
M.M. Roberts, Joe A. Thompson, Hattiesburg, for appellee Humble Oil Refining Company.
I. The assessment was a valid assessment.
II. The tax sale based upon said assessment was a valid tax sale. Brougher v. Conley, 62 Miss. 358; Secs. 3249, 3294, Code 1930.
III. On question of possession or occupancy. Dixon v. Cook, 47 Miss. 220; Leavenworth v. Claughton, 197 Miss. 606, 19 So.2d 815, 20 So.2d 821; Secs. 711, 717, Code 1942.
IV. If there is competent testimony to support the findings of the Chancellor, same will not be upset and unless the Court on appeal can state that the decree of the trial court is manifestly wrong his findings and decree will be upheld. Clark v. Dorsette, 157 Miss. 365, 128 So. 79; Jackson Opera House Co. v. Cox, 188 Miss. 237, 192 So. 293; Koenig v. Calcote, 199 Miss. 435, 25 So.2d 763; Little v. Little, 218 Miss. 467, 67 So.2d 462; Saenger Theatres Corp. v. Herndon, 180 Miss. 791, 178 So. 86.
Alfred Moore, Hattiesburg, for appellee Hobart A. Smith.
I. The decree of the Chancery Court of Perry County, Mississippi, entered at the October, 1951, term of said Court, should be affirmed by this Court if, in any fair and reasonable view of all the evidence, the conclusions of the Chancellor can be sustained. Everett v. Hester (Miss.), 67 So.2d 509; Little v. Little, 218 Miss. 467, 67 So.2d 462.
II. The notice required by Section 3178, Mississippi Code of 1930 by the Board of Supervisors of Perry County, Mississippi, of its special meeting held on September 30, 1930, was sufficient in law and in fact, and in the event the said notice was not sufficient in law and in fact then it did not void the assessment of this land as the record does not reflect that the original appellant ever tendered the amount of taxes required under the assessment fixed at the August meeting of the Board of Supervisors. Entrekin v. Tide Water Associated Oil Co., 203 Miss. 767, 35 So.2d 305; Evans v. Bd. of Supervisors of Calhoun County, 192 Miss. 188, 5 So.2d 224; Henderson Molpus v. Gammill, 149 Miss. 576, 115 So. 716; Pettibone v. Wells, 181 Miss. 425, 179 So. 336; Richton Tie Timber Co. v. McWilliams (Miss.), 67 So.2d 374; Scott County v. Dubois, 158 Miss. 245, 130 So. 106; Tatum v. Smith, 158 Miss. 511, 130 So. 683; Secs. 3178, 3183, 3273, Code 1930.
III. The Board of Supervisors had the right under the law on Tuesday, April 7, 1931, to enter an order fixing the first Monday of July as the date of sale of land for delinquent taxes. Bass v. Batson, 171 Miss. 273, 157 So. 530; Harlan v. Martin, 200 Miss. 667, 27 So.2d 725; State v. Wilkinson, 197 Miss. 628, 20 So.2d 193; Secs. 3249, 3252, Code 1930.
IV. The finding by the Chancellor that Hobart A. Smith went into the possession of said land after obtaining the forfeited tax land patent, and has been in the actual, open, notorious, hostile and continuous possession of said land for more than two years prior to the filing of the original bill of complaint, is amply supported by the evidence. Broadus v. Hickman, 210 Miss. 885, 50 So.2d 717; Henry v. Henderson, 216 Miss. 252, 62 So.2d 315; Wilson v. Russell, 216 Miss. 838, 63 So.2d 240; Secs. 711, 716-7, Code 1942.
On July 6, 1931, the sheriff and tax collector of Perry County sold to the State for delinquent taxes for the year 1930 the eighty acres of land involved in this suit. On May 6, 1941, appellee obtained from the State a tax forfeited land patent for this land. W.D. McKenzie, the owner of the land at the time of the tax sale, brought this suit in 1948 seeking to have the said tax sale declared void. At the trial, the chancellor held that the tax sale was valid and further held that if it were invalid the alleged defects in the tax sale were cured by the two-year statute of limitation pertaining to tax sales to the State, Section 717, Code of 1942. McKenzie died while this appeal has been pending and the cause has heretofore been revived in the names of his heirs at law, Mrs. Elizabeth Mixon McKenzie, Mrs. Martha McKenzie Hamilton, and Mrs. Mary Lou McKenzie Priest.
1. (Hn 1) Appellants contend that the assessment of the lands in question for the year 1930 was invalid for the following reason: After the assessment roll had been certified to the State Tax Commission, that body entered an order directing the board of supervisors to decrease the assessment of uncultivatable lands (in which class the lands in question fell) by 25%. Pursuant to the provisions of Section 3178, Code of 1930, which is the same as Section 9802, Code of 1942, the president of the board called a meeting of the supervisors by written notice. The notice was dated September 25, 1930, and the meeting was to be held on September 30, 1930. This notice was published in the county weekly newspaper in the issue which bore the date-line of Friday, September 26, 1930, which would be one day short of the five days publication required by said Section 9802. When the Board met on September 30 an order was entered on its minutes adjudicating the fact to be that the notice was published on September 25, 1930. The owner and publisher of the newspaper in which the notice was published was offered as a witness by appellant and testified at the trial that the paper was always dated on Friday but that as a matter of fact the paper was always actually published not later than the preceding Thursday. The minutes of the board contain every adjudication of fact necessary to confer jurisdiction upon it to consider the assessment roll on September 30. Those minutes import absolute verity and cannot be impeached by parol evidence. Scott County v. Dubois, 158 Miss. 245, 130 So. 106. See also Pettibone v. Wells, 181 Miss. 425, 179 So. 336, and Entrekin v. Tide Water Associated Oil Co., 203 Miss. 767, 35 So.2d 305. (Hn 2) It is a matter of common knowledge that in almost every city of the land daily morning newspapers are published and in circulation and may be purchased on the streets the evening before their date, and that nearly all the national magazines may be bought on the news stands several days prior to the date which they bear. (Hn 3) It is our conclusion that the necessary five days notice by publication was given and that consequently there is no merit in the contention that the assessment is void for failure to give the notice.
2. On April 6, 1931, the sheriff and tax collector conducted a sale of lands delinquent for taxes for the year 1930, that date being the first Monday in April and being the date fixed by law for such sale by Section 3249, Code of 1930, which was the statute governing such sales at that time. His certificate of this sale shows several sales to individuals and also several sales to the State. The certificate is dated April 6, 1931, which indicates that he concluded the sale on that date. On April 7, 1931, the board of supervisors entered an order, pursuant to Section 3252, Code of 1930, adjudicating the fact to be that the sheriff and tax collector had not sold all the real estate on which the taxes were delinquent and directing him to make a sale of such lands on the first Monday in July, 1931. Pursuant to that order a second sale was conducted on the first Monday of July, 1931, as to the lands which had not been sold on April 6, 1931, and the lands here in question were then struck off and sold to the State. It is contended that the sale is void because under said Section 3249 the sheriff and tax collector was required to continue his sale from day to day until he had sold all lands which were delinquent for taxes and that the sale was still in progress on April 7, 1931, for which reason the board of supervisors was without authority to continue the sale to the first Monday in July. (Hn 4) The fallacy in that argument is that the tax collector's certificate of sale shows that he concluded his sale on April 6, for the certificate is so dated. Presumably all prospective bidders who may have been present on April 6 were not advised that the sale would be continued on the following day. (Hn 5) At any rate, after the tax collector had concluded his sale on April 6, and the board of supervisors learned on the following day that he had failed to sell all lands on which the taxes were delinquent, the board was fully authorized by Section 3252, Code of 1930, to then order another tax sale to be held on some subsequent date to be fixed by the board. That is exactly what was done in the present case.
By Chapter 25, Laws of 1931, the legislature fixed as the regular days for sales for delinquent taxes the first Monday in April and the third Monday in September of each year. That Act became effective October 31, 1931, and it was later amended by Section 28, Chapter 188, Laws of 1934. Appellant relies on a number of cases which have been decided by this Court under the 1934 law to the effect that the board of supervisors has no authority to order a sale of lands for delinquent taxes until after the second date fixed for such sale has passed, i.e., the third Monday in September. Those cases follow an early decision to the effect that the board cannot order a sale on some date other than that fixed by law until after the date fixed by law has passed. The trouble with appellant's argument is that in the case at bar the board did not enter an order for the tax sale until after the date fixed by law had passed. We conclude that the tax sale is valid and this makes it unnecessary for us to consider the question whether the evidence as to adverse possession under Section 717, Code of 1942, is sufficient to support the decree for the reason that appellee obtained a good title to the land without the necessity of adverse possession.
Affirmed.
McGehee, C.J., and Holmes, Arrington and Ethridge, JJ., concur.