Opinion
No. 32726.
May 3, 1937.
1. TAXATION.
A municipality which allegedly was permitted to redeem lands sold for state and county taxes by virtue of statute was not entitled to notice of tax sale required by statutes to be sent by clerk of chancery court to owners and to holders of liens (Code 1930, secs. 2588, 3257-3262).
2. TAXATION.
Under statute relating to notice of tax sale which clerk of chancery court must send to lienholders, clerk is not required to seek elsewhere than in record of deeds, mortgages, and deeds of trust in his office for a period of six years prior to date of sale for names of persons holding liens on lands sold for taxes (Code 1930, sec. 3259).
APPEAL from chancery court of Hinds county. HON. V.J. STRICKER, Chancellor.
W.E. Morse and Lamar F. Easterling, both of Jackson, for appellant.
Appellee failed to meet the burden of proof. It is, of course, axiomatic law that a party suing to confirm title or to cancel adverse claims thereon must plead and prove a perfect legal or equitable title himself. He cannot rely on the weakness of his adversary's title. In fact, the validity of his adversary's title does not come into the question unless and until the complainant has first plead and proved a perfectly valid title in himself.
Acoff v. Roman, 159 So. 555, 172 Miss. 141; Peterson v. Kittredge, 65 Miss. 33, 3 So. 65, 5 So. 824; Metcalf v. Wise, 159 Miss. 541, 132 So. 102; Hunter v. Bennett, 149 Miss. 368, 115 So. 204; Lyon v. Ratliff, 129 Miss. 342, 92 So. 229; Houston Bros. v. Lenhart, 101 So. 289, 136 Miss. 841; Sections 1578 and 3256, Code of 1930; Chapter 25, Laws of 1931; Mitchell v. Tubb, 107 Miss. 221, 65 So. 216.
The assessment roll of Hinds county, Mississippi, for the year 1930-31 not having been made in the manner required by law is null and void and, therefore, the tax sale to the state of Mississippi was invalid.
Section 3162, Code of 1930; State v. Wyoming Mfg. Co., 138 Miss. 249, 103 So. 11; Henderson Molpus Co. v. Gambell, 149 Miss. 576, 115 So. 716; Adams v. First National Bank, 103 Miss. 744, 60 So. 770; Board of Supervisors v. Otley, 146 Miss. 118, 112 So. 466; Merchants Bank v. Scott County, 165 Miss. 91, 145 So. 908; Bank v. Attala County, 165 Miss. 560, 126 So. 192; Hancock County v. Cooper, 147 Miss. 57, 112 So. 682; Gordon v. Smith, 122 So. 762, 154 Miss. 787; Aultman v. Fleming, 147 Miss. 127, 113 So. 200; Robb v. Postal Tel. Co., 61 So. 170; Merchants Bank Trust Co. v. Scott County, 165 Miss. 91, 145 So. 908; Oliver Construction Co. v. Crawford, 107 So. 877.
The board in approving the realty assessment rolls of the First district of Hinds county, Mississippi, did not meet at the time and place fixed by law and the proceedings attempting to approve the said assessment rolls were void because done at a special meeting and the minutes do not show the giving of the notice of such meeting as is required by law.
Section 203, Code of 1930; Hunter v. Bennett, 149 Miss. 368, 115 So. 205; Kittle v. McClanahan, 126 Miss. 179, 88 So. 508.
The appellant being the holder of an unmatured tax title to it for city taxes for the year 1931 under the sale to the city of Jackson of April 4, 1932, was lienor within the meaning of the law and the chancery clerk should have given the city of Jackson notice as required by sections 3259, 3260, 3261 and 3262 of the Code of 1930 of the state of Mississippi.
Chapter 280, Laws of 1936; Section 2530, Code of 1930; Chapter 220, Laws of 1932.
Howie, Howie McGowan, of Jackson, for appellee.
The appellee respectfully submits that she made out a clear cut and perfect prima facie case both by her pleadings and the evidence offered.
The complainant set out every material fact in the bill of complaint. The property was shown to have been sold out of the United States government. This showing is clear and conclusive. The complainant in every respect deraigned her title according to law.
Griffith Chancery Practice, page 219, sec. 219; Westerfield v. Merchants, 93 Miss. 791, 47 So. 434; Long v. Stanley, 30 So. 823; Chiles v. Gallager, 67 Miss. 413, 7 So. 208; Lyons v. Ratliff, 129 Miss. 342, 92 So. 229; Mallory v. Walton, 119 Miss. 396, 81 So. 113; Houston Bros. v. Lenhart, 136 Miss. 841, 101 So. 289; Clymer v. Cameron, 55 Miss. 593; Acoff v. Roman, 172 Miss. 141, 159 So. 555.
We now come to the second contention of appellant to the effect that the assessment roll of Hinds county for the year 1930-1931 was not made in the manner provided by law, and the tax sales thereunder are invalid.
Appellant argues at length in an attempt to prove that the notice given by the board that the rolls are open for inspection must stand published for a period of ten days or more.
This contention of appellant is completely answered in the negative in the case of State v. Wyoming Mfg. Co., 138 Miss. 249, 103 So. 11.
Aultman v. Fleming, 113 So. 200.
In the case of Hinton v. Perry County, 84 Miss. 536, 36 So. 565, the court laid down a rule which appears to this appellee to be broad enough and definite enough to permanently exclude the contention that the actual physical notice in words and figures must appear in the minutes.
The appellee respectfully submits that the orders entered by the board of supervisors of Hinds county, Mississippi, at its July meeting and at its August meeting were full and complete and set forth every jurisdictional fact that might reasonably be required.
Henderson Molpus Co. v. Gammill, 149 Miss. 576, 115 So. 716; State v. Wyoming Mfg. Co. 138 Miss. 249.
Appellee submits that the validity of the meeting of board of supervisors of Hinds county was not attacked in the pleadings, and was not attacked at the trial below; that there is nothing in the transcript showing any attack on the meeting before the matter came before this court on appeal. Appellee submits that having made out a prima facie case in the trial court she should not be called upon to rebut matters not offered in contravention of her title or in contravention of the prima facie case she made out in the trial court.
Section 201, Code of 1930.
We now come to the consideration of appellant's fourth ground for reversal, that the appellant, the city of Jackson, was the holder of an unmatured tax title to it for city taxes for the year 1931 under the sale to the city of Jackson of April 4, 1932, and was a lienor within the meaning of the law, and the chancery clerk should have given the city of Jackson notice as required by sections 3259, 3260, 3261 and 3262, of the Code of 1930.
The appellee respectfully represents that there is no merit whatsoever in this contention. In the first place appellant sets itself up as the holder of an "unmatured tax title" for city taxes, and at the same time calls itself the lienor. This is utterly inconsistent in the first instance. When the city proceeded to sell the land to itself by virtue of its own revenue laws in April, 1932, it automatically extinguished whatever lien it had by this foreclosure. It is elemental that a foreclosure will work an extinguishment of any lien. The tax title wiped out the lien, if any, and vested whatever title might have been conveyed therein in the city. Strictly speaking, the owner of this land, the Jackson Development Company, did not own the land any more. All it owned was an equity of redemption with a right of possession until maturity date.
Section 3256, Code of 1930.
It will be observed that the statute specifically states who shall get the notice, and specifically states what books shall be examined, that is, the deeds, mortgages and deeds of trust in its office for a period of six years. In other words, in the absence of renewals six years is the statute of limitation upon written obligations to pay. If the city of Jackson owned this land no statute of limitation would ever run against its ownership, neither could it ever lose the land by taxes to the state because its lands are exempt.
Appellee further submits that these statutes are penal and, under the general theory of penal statutes, must be strictly construed.
Appellee further submits that no proof was made that the listing of lands sold by the city to itself was ever filed in the office of the chancery clerk. It was shown at the trial that the books were deposited and left therewith the certificates of the city clerk and city tax assessor identifying the books, but there was no evidence and no certificate offered in evidence whether the same were ever filed with the chancery clerk. The chancery clerk could not be charged with a duty in reference to any instrument by the certificate of a third party. He must acknowledge the receipt of it in his office and show by his own records the filing thereof, otherwise it would be unreasonable to charge him with it.
Argued orally by W.E. Morse, for appellant, and by M.M. McGowan, for appellee.
This is an appeal by the City of Jackson from a decree of the chancery court of the First district of Hinds county confirming the tax title of appellee to a certain lot in said city.
The city of Jackson, as well as the record owner and all persons interested therein, were made parties to the bill. The city of Jackson appeared and filed its answer asserting title to the lot in controversy by virtue of a tax sale to itself on April 4, 1932, for the taxes due it for the year 1930, said answer containing the following statement: "Defendant admits that by said sale, it is attempting to assert its right, title and interest in and to said lot, and admits that it is due taxes on said property, and denies that it is attempting to assert a lien therefor, but avers that it is the legal owner of said property."
Without copying into this decision the orders of the board of supervisors and the evidence in the case, we are of the opinion that the case should be affirmed.
The title of appellee rested upon a deed from the state land commissioner duly approved as required by law, and the sheriff's list of lands sold on April 5, 1932, for delinquent taxes for 1931, as required by the several statutes and decisions of this court. We think all the jurisdictional facts sufficiently appear on the minutes of the board of supervisors relative to the assessment of this land for taxes. Henderson Molpus Co. v. Gammill, 149 Miss. 576, 115 So. 716; State ex rel. Knox v. Wyoming Mfg. Co., 138 Miss. 249, 103 So. 11, and Robb Chicester v. Telegraph Co., 104 Miss. 165, 61 So. 170 and 977, and especially the suggestion of error.
The only question in this case we deem necessary to notice is appellant's contention that the clerk did not give it notice in compliance with sections 3257 to 3262, both inclusive, Code 1930, and especially section 3257, by which the clerk is required to give notice to owners within ninety days and not less than sixty days prior to the expiration of the time of redemption. The applicable portion of said section 3259 is as follows: "It shall be the duty of said clerk of the chancery court to examine the record of deeds, mortgages and deeds of trust in his office for a period of six years prior to the date of sale to ascertain the names and addresses of all mortgagees, beneficiaries and holders of vendors liens of all lands sold for taxes, and shall, within the time fixed by law for notifying owners, send by registered mail to all such lienors so shown of record the following notice," etc. Then follows the notice. The title in controversy did not vest absolutely prior to April 4, 1936. The notice required to be sent by the clerk must be mailed, at least, sixty days before the expiration of the time for redemption.
The appellant contends that the list for the sales of land was lodged in the chancery clerk, as required by the statute, and that it was permitted to redeem lands sold for state and county taxes by virtue of sections 3257, 3258, 3259 and 2588.
If, for the purpose of the argument, we concede that a municipality, a subdivision of the state, may contest with the state a title acquired by it, still we are of the opinion that the appellant, city of Jackson, was not entitled to the notice required by section 3257, nor to the notice from the chancery clerk required by section 3259, Code 1930.
We think the Legislature never intended that the notice required by these sections should be mailed to municipalities. At all events, the statute, section 3259, limits the source of investigation, on the part of the chancery clerk, to the "record of deeds, mortgages and deeds of trust in his office for a period of six years prior to the date of sale." The chancery clerk is not required to seek elsewhere for the names of persons holding liens on such lands sold for taxes.
We do not feel that we would be warranted in extending the statute.
Affirmed.