Opinion
No. 36679.
May 10, 1948.
1. TAXATION.
Where tax collector was not given description of land but general request was made to tax collector for statement of amount of taxes owing by owner on land acquired from named grantor, taxpayer did not make a valid tender, against which tax sale could not afterwards be made, as to tract of land for which statement was not furnished.
2. EVIDENCE.
Where minutes of county board of supervisors pertaining to assessment and sale for nonpayment of taxes appeared regular on their face, oral testimony of member of board and deputy clerk that minutes were not signed by president until after adjournment of meeting of board was incompetent, in suit involving validity of tax title.
3. EVIDENCE.
Oral proof to contradict, alter or change minutes of county board of supervisors regular on their face is not competent.
4. EVIDENCE.
Where president of county board of supervisors had been dead a number of years when suit involving validity of tax title was tried, testimony that in witness' opinion, name of president of board appearing to be signed to some of minutes pertaining to assessment of tax and sale for nonpayment thereof was not his genuine signature, was incompetent.
5. EVIDENCE.
Official records, required by law to be kept, import verity.
APPEAL from the Chancery Court of Lamar County.
Hathorn Hathorn, of Hattiesburg, and Holmes Bowdre, of Hernando, for appellants.
Defendants made a bonafide effort to pay and tendered payment of all taxes due on the lands in suit for the year 1924, and the same was refused through dereliction in duty by the tax collector, and therefore the alleged tax sale of June 1, 1925, was void.
Brannon v. Lyon, 86 Miss. 401, 38 So. 609; Bousquet v. Brown, 152 Miss. 171, 119 So. 166; McLain v. Meletio, 166 Miss. 1, 147 So. 878; Stegall v. Miles, 194 Miss. 354, 12 So.2d 537.
The alleged tax sale of June 1, 1925, was void by reason of the failure of the president of the board of supervisors to read and sign the minutes of the board prior to final adjournment of its revenue terms, dealing with the assessments.
Gardner v. Price, 197 Miss. 831, 21 So.2d 1; Brand v. Board of Sup'rs of Newton County, 198 Miss. 131, 21 So.2d 579; Merchants Manufacturers Bank v. State, 200 Miss. 291, 25 So.2d 585; Code of 1942, Sec. 1750.
The approval of the assessments at an adjourned meeting of the board on July 16, 1923, was void.
Sharp v. Smith, 180 Miss. 887, 178 So. 595; Davis v. Grice, 141 Miss. 412, 106 So. 631; Hunter v. Bennett, 149 Miss. 368, 115 So. 204; City of Grenada v. Grenada County, 167 Miss. 814, 150 So. 657; Price v. Harley, 142 Miss. 584, 107 So. 673; Rawlings v. Ladner, 174 Miss. 611, 165 So. 427; Henderson Molphus Co. v. Gammill, 149 Miss. 576, 115 So. 716; Gordan v. Smith, 154 Miss. 787, 122 So. 762; Hemingway's Code of 1917, Secs. 3668, 3671; Code of 1942, Sec. 2878; Laws of 1920, Ch. 323.
Appellants made a bona fide attempt to pay the taxes on the land in suit for the year 1926, but failed in this attempt due to the dereliction in duty of the tax collector, rendering the alleged tax sale of June 6, 1927, void.
See collation of authorities supra.
Failure of the president of the board of supervisors to read and sign the minutes prior to final adjournment of the board rendered said tax sale void.
See collation of authorities supra.
The tax levy of Lamar County for the year 1926 was void for the following reasons: (a) The absence of a valid assessment upon which a lawful levy might be made; (b) the failure of the president of the board of supervisors to read and sign the minutes prior to final adjournment of the November 1926 term; and (c) the failure of the board to adjudicate the necessary jurisdictional facts in entering its order purporting to make the tax levy, because it had not finally approved assessment rolls before it when ordering the levy.
Gamble v. Witty, 55 Miss. 26, 34; Beard v. Board of Sup'rs. of Lee County, 51 Miss. 542; Board of Sup'rs of Warren County v. Klein, 51 Miss. 807; Gulf S.I.R. Co. v. Harrison County, 192 Miss. 114, 4 So.2d 717; Chickasaw County v. Gulf, M. O.R. Co., 195 Miss. 754, 15 So.2d 348, 351; Union Land Timber Co. v. Pearl River County, 141 Miss. 131, 106 So. 277; Edward Hines Yellow Pine Trustees v. State, 146 Miss. 101, 112 So. 12; Mullins v. Shaw, 77 Miss. 900, 28 So. 958; Hemingway's Code of 1917, Sec. 3680; Laws of 1920, Ch. 253, amending Sec. 3708, Hemingway's Code of 1917.
Appellant's did not lose title to the land in suit by abandonment, estoppel or adverse possession.
Meyerkort v. Warrington (Miss.), 19 So.2d 433, 435-436; Cohn v. Smith, 94 Miss. 517, 49 So. 611; Williams Co. v. Collins, 114 Miss. 882, 75 So. 689; Dead River Fishing Hunting Club v. Stovall, 147 Miss. 385, 389, 113 So. 336; Smith v. Anderson, 193 Miss. 161, 8 So.2d 251; Levy et al. v. Campbell, 200 Miss. 721, 28 So.2d 224; Stokely v. State ex rel. Knox, 149 Miss. 435, 115 So. 563; Pace v. State ex rel. Rice, 191 Miss. 780, 4 So.2d 270; Lloyd's Estate v. Mullen Tractor Equipment Co., 192 Miss. 62, 4 So.2d 282; Koenig v. Calcote, 199 Miss. 435, 25 So.2d 763; Armstrong v. Bell, 199 Miss. 29, 24 So.2d 10; Cook v. Farley, 195 Miss. 638, 15 So.2d 352; 1 R.C.L. 728; Stephens County v. Mid-Kansas Oil Gas Co., 113 Tex. 160, 254 S.W. 290, 29 A.L.R. 566; Sheffield v. Hogg, 124 Tex. 290, 77 S.W.2d 1021; Hager v. Stokes, 116 Tex. 453, 294 S.W. 835; Corsicana Petroleum Co. v. Owens, 110 Tex. 568, 222 S.W. 154; Code of 1942, Secs. 711, 716, 717; 2 C.J.S. 171, note 54, p. 535, Sec. 20, p. 584, Sec. 65 (b), p. 698, Secs. 133, 134, p. 700, Sec. 140, p. 757, Sec. 180 (b), p. 772, Sec. 184; Blake, "Oil Royalties: A Suggested Criterion," Miss. Law Journal (March 1941), Vol. 13, No. 8; Wade, "Nature of Lessor's Interest," Miss. Law Journal (March 1947), Vol. 18, p. 247 et seq.; Walker, "The Nature of the Property Interests Created by an Oil and Gas Lease in Texas," 8 Texas Law Rev., p. 291 and note (1934), 13 Texas Law Rev. 501. Watkins Eager, Wells, Wells, Newman Thomas, L.O. Smith, Jr., W.N. Ethridge, Jr., and Elizabeth Hulen, all of Jackson, T.W. Davis, Jr., of Hattiesburg, Jesse W. Shanks, of Purvis, and Lloyd Armstrong, of Houston, Texas, for appellees.
The tax sale to the State of Mississippi on June 1, 1925, was valid. Taxes on the land in question for 1924 were neither paid nor tendered.
Brannan v. Lyon, 86 Miss. 401, 38 So. 609; Bousquet v. Brown, 152 Miss. 171, 119 So. 166; McLain v. Meletio, 166 Miss. 1, 147 So. 878; Stegall v. Miles, 194 Miss. 353, 12 So.2d 537; Neal v. Shepard, 157 Miss. 730, 128 So. 69; Kelley v. Coker et al., 197 Miss. 131, 19 So.2d 519.
The minutes of the board of supervisors of Lamar County, Mississippi, pertaining to the assessment of the land for 1923 and 1924 taxes are regular and were signed by the president of the board of supervisors and cannot be impeached by parol evidence.
Gardner v. Price, 197 Miss. 831, 21 So.2d 1; Brand v. Board of Sup'rs of Newton County, 198 Miss. 131, 21 So.2d 579; Merchants Manufacturers Bank v. State, 200 Miss. 291, 25 So.2d 585; Adams v. Yazoo M.V.R. Co., 77 Miss. 194, 24 So. 200; Duncan v. Gerdine et al., 59 Miss. 550; Shirley v. Fearne, 33 Miss. 653; Scott County v. Dubois, 158 Miss. 245, 130 So. 106; Smith et al. v. Board of Sup'rs of Tallahatchie County, 124 Miss. 36, 86 So. 707; Yazoo Delta Lumber Co. v. Eastland, 104 Miss. 553, 61 So. 597; McAllum et al. v. Spinks et al., 129 Miss. 237, 91 So. 694; Childress v. Carley, 92 Miss. 571, 46 So. 164, 131 Am. St. Rep. 546; Mullins v. Shaw, 77 Miss. 900, 28 So. 958; Murrah v. State, 51 Miss. 652; Edward Hines Yellow Pine Trustees v. State, ex rel. Moore 133 Miss. 334, 97 So. 552; State v. ex rel. Moore v. Knapp, Stout Co., 136 Miss. 709, 101 So. 433; Trotter v. Gates Co., 162 Miss. 569, 139 So. 843; Brotherhood of Railroad Trainmen v. Agnew, 170 Miss. 604, 155 So. 205; Jones v. Seward, 196 Miss. 446, 16 So.2d 619; Trahan v. State Highway Commission, 169 Miss. 732, 151 So. 178; Town of Magee v. Mallett, 178 Miss. 629, 174 So. 246; Watkins v. McDonald (Miss.), 41 So. 376; Simmons v. Dantzler, 152 Miss. 428, 118 So. 829; Hammond-Gregg Co. v. Bradley, 119 Miss. 72, 80 So. 489; Federal Land Bank v. Leflore County, 170 Miss. 1, 153 So. 882; Owens v. State, 16 Ala. A. 413, 78 So. 423; Wagner v. Grant Parish Police Jury (La.), 203 La. 1071, 14 So.2d 855; United Thacker Coal Co. v. Commissioner of Internal Revenue, 46 F.2d 231; Thompson v. Weems, 111 F.2d 566; Constitution of 1890, Sec. 170; 22 C.J. 1084; 26 C.J. 972, Sec. 138; 58 C.J. 726, Sec. 14; 31 C.J.S. 813, Sec. 146; 37 C.J.S. 826, Sec. 147; 2 Wigmore on Evidence 782, Sec. 665; 7 Wigmore on Evidence 626, Sec. 2158; Black's Law Dictionary, word "sign."
The approval of the land assessment roll for 1923 and 1924 at the July 16, 1923, meeting of the board of supervisors of Lamar County, Mississippi, was valid.
Byrd v. Byrd, 193 Miss. 249, 8 So.2d 510.
The tax sale of June 6, 1927, to I.H. Bass, conveying the west half of southwest quarter of Section 31, Township 2 North, Range 16 West, was valid.
Celtic Land Improvement Co. v. L.N. Dantzler Lumber Co., 144 Miss. 529, 110 So. 438; Shepherd v. Cox, 191 Miss. 715, 4 So.2d 217.
Taxes for 1926 on the land involved in this suit were neither paid nor tendered by W.H. Entrekin or appellants herein.
Neal v. Shepard, 157 Miss. 730, 128 So. 69.
The minutes of the board of supervisors of Lamar County, Mississippi, pertaining to the assessment of the land for 1926 taxes are regular and were signed by the president of the board of supervisors and cannot be impeached by parol evidence.
The tax levy of Lamar County, Mississippi, for 1926 was valid, but any error therein would not invalidate the tax sale of June 6, 1927.
Gamble v. Witty, 55 Miss. 26; Gulf S.I.R. Co. v. Harrison County, 192 Miss. 114, 4 So.2d 717; Chickasaw County v. Gulf, M. O.R. Co., 195 Miss. 754, 15 So.2d 348; Union Land Timber Co. v. Pearl River County, 141 Miss. 131, 106 So. 277; Carter v. Hadley, 59 Miss. 130; Corburn v. Crittenden, 62 Miss. 125; Gibbs v. Dortch, 62 Miss. 671; Capital State Bank et al. v. Lewis et al., 64 Miss. 727, 2 So. 243; Lewis et al. v. Vicksburg M.R. Co., 67 Miss. 82, 6 So. 773; Moores v Thomas et al., 95 Miss. 644, 48 So. 1025; Tatum v. Smith, 158 Miss. 511, 130 So. 683; Gardner v. Price, supra; Code of 1871, Sec. 1700; Code of 1906, Sec. 4332; Hemingway's Code of 1917, Secs. 3680, 3708; Hemingway's Code of 1927, Secs. 4013, 8251.
If the tax titles were invalid, appellees acquired a good title by adverse possession under the tax deed to I.H. Bass dated June 6, 1927.
Cohn v. Smith, 94 Miss. 517, 49 So. 611; Dedeaux et al. v. Bayou Delisle Lumber Co. et al., 112 Miss. 325, 73 So. 53; Williams Co. v. Collins, 114 Miss. 882, 75 So. 689; Dead River Fishing Hunting Club v. Stovall et al., 147 Miss. 385, 113 So. 336; Hamner et al. v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 466; Ford v. Wilson, 35 Miss. 490; McCaughan v. Young, 85 Miss. 277, 37 So. 839; Sproule v. Alabama V.R. Co., 78 Miss. 88, 29 So. 163; Native Lumber Co. v. Elmer, 117 Miss. 720, 78 So. 703; Kersh et al. v. Lyons et al., 195 Miss. 598, 15 So.2d 768; Snowden McSweeny Co. v. Hanley et al., 195 Miss. 682, 16 So.2d 24; Leavenworth v. Claughton, 197 Miss. 606, 19 So.2d 815, 20 So.2d 821; Smith et al. v. Anderson et al., 193 Miss. 161, 8 So.2d 251; Gathings v. Miller, 76 Miss. 651, 24 So. 964; Douglas et al. v. Skelly Oil Co., 201 Miss. 23, 28 So.2d 227; Harper v. Tapley, 35 Miss. 506; Benson v. Stewart, 30 Miss. 49; Crowder et al. v. Neal et al., 100 Miss. 730, 57 So. 1; Code of 1942, Sec. 711; 1 Am. Jur. 926, Sec. 241; 2 C.J. 82, Sec. 66.
Adverse possession of the minerals was continuous and was not interrupted by conveyance from Bass, Sr., to Bass, Jr., because there was privity of estate between them and, upon such horizontal severance, adverse possession of severor continues for benefit of himself and severee.
Benson v. Stewart, supra; Crowder v. Neal, supra; Wight v. Ingram-Day Lumber Co., 195 Miss. 823, 17 So.2d 196; Cook v. Farley, 195 Miss. 638, 15 So.2d 352; Levy v. Campbell, 200 Miss. 721, 28 So.2d 224; Jenkins v. Trager, 136 U.S. 651, 40 F. 726; Clements v. Texas Co., 273 S.W. 993; Alabama Fuel Iron Co. v. Broadhead, 98 So. 789; Shively v. Elkhorn Coal Corporation, 289 S.W. 262; Leverett v. Leverett, 59 S.W.2d 252; Laird v. Gulf Production Co., 64 S.W.2d 1080; Broughton v. Humble Oil Refining Co., 105 S.W.2d 480; Thomas v. Southwestern Settlement Development Co., 131 S.W.2d 31; Kilpatrick v. Gulf Production Co., 139 S.W.2d 653; McLendon v. Comer, 200 S.W.2d 427; 2 C.J.S., Adverse Possession, Secs. 39, 40, 128, 129(b), 130; 1 Summers on Oil Gas, Sec. 138; Thuss, Texas Oil Gas, Sec. 22, pp. 30-31; 31-A Texas Jurisprudence, Oil Gas, pp. 44-45, Sec. 15.
The record conclusively demonstrates that appellants were guilty of inexcusable laches and consequently are estopped to question the title of appellees.
Meyerkort et al. v. Warrington et al. (Miss), 19 So.2d 433; Levy et al. v. Campbell, supra; Southeastern Express Co. v. Namie, 182 Miss. 447, 181 So. 515; Herndon v. Mayfield, 79 Miss. 533, 31 So. 103; Mixon v. Clevenger, 74 Miss. 67, 20 So. 148; Brougher v. Stone, 72 Miss. 647, 17 So. 509; Atkinson v. Greaves, 70 Miss. 42, 11 So. 688; Comans v. Tapley, 101 Miss. 203, 57 So. 567; Marks v. Toney, 196 Miss. 572, 18 So.2d 452; Vanlandingham et al. Meridian Creek Drainage District et al., 191 Miss. 345, 2 So.2d 591; Burbridge v. Wilson, 99 Ark. 455, 138 S.W. 880; Medallion Oil Co. v. Hinckley, 92 F.2d 155; Code of 1942, Sec. 1739; Griffith's Mississippi Chancery Practice, p. 37, Sec. 33, pp. 218-219, Sec. 220; 30 C.J.S. 541-542, Sec. 118.
By the decree of the lower court, appellees have a finding of fact in their favor as to every material issue of fact and, therefore, on every issue where there is any evidence to support the chancellor's finding, the decree of the lower court must be affirmed.
Vaughan v. Commercial Bank (Miss.), 18 So. 270; Northern Assurance Co. v. J.J. Newman Lumber Co., 105 Miss. 688, 63 So. 209; Kemp v. Turman, 104 Miss. 501, 61 So. 548; Shaw v. Shaw (Miss.), 194 So. 751; Early v. United States Fidelity Casualty Co., 181 Miss. 162, 176 So. 720; Walker v. Walker, 67 Miss. 529, 7 So. 491; Stroud v. Loper, 190 Miss. 168, 198 So. 46.
Argued orally by P.H. Bowdre, for appellants, and by Earl T. Thomas, for appellees.
The subject matter of this litigation is the title to eighty acres of land located in Lamar County, Mississippi. Appellants claim to be the owners of the title as the heir of W.H. Entrekin, now deceased, who was the owner of the land June 1, 1925, and June 6, 1927, at which respective times the land sold for nonpayment of taxes, the first sale being made to the State of Mississippi and the second to I.H. Bass. On October 24, 1940, the State, by patent, conveyed the land to T.W. Davis, Jr. All appellees claim through the foregoing two sales, and there is no controversy or issue between the appellees themselves. If either of such sales is valid appellants have no claim to the property. They claim that both sales are void. Without passing on the validity of the second sale, we have concluded the first was legal and valid, and that, therefore, appellants have no title or legal or equitable claim to the land. We, therefore, decide only the legality of the sale of June 1, 1925.
No invalidity as to the assessment of the tax or the sale for nonpayment therefor appears on the face of the proceedings. But appellants say the sale was void because (1) an offer was made to pay the tax without success under such conditions as amounted to legal payment under the former holdings of this court, and (2) that some of the minutes levying the tax were not signed by the President of the Board of Supervisors until after adjournment of the Board.
The proof on the first proposition is that W.H. Entrekin, at the time of the assessment and sale, was located and engaged in the sale of automobiles at Hernando, Mississippi, and owned several hundred acres of land in Lamar County. He had formerly owned this and other lands jointly with other parties. Partition deeds had been executed between the parties. However, the lands in controversy, and some other lands belonging to Entrekin, were yet assessed on the rolls in the name of Pole Stock Lumber Company. Miss Mamie Entrekin, a daughter of W.H. Entrekin, and now one of his heirs and one of the appellants, was working in the office of her father at Hernando. She had charge of the payment of taxes on lands in Lamar County. She testified, "I wrote to the sheriff and asked him to send me the amount of taxes I would owe on the land my Daddy got from Gammel in the division.
"Q. State whether or not you reported to him as to who the land would be assessed to? A. I did, because it had been assessed to Pole Stock Lumber Company ever since we had been there and I mentioned the fact it was still in the name of Pole Stock Lumber Company.
"Q. Which part of the land did you ask him to tell you the amount of taxes for 1924?" A. On all the land that my father received by the division of the land he got from Gammels."
The sheriff and tax collector sent her statements of the taxes owing on several hundred acres of land in Lamar County — some assessed in the name of Pole Stock Lumber Company, some in the name of W.H. Entrekin and some in the names of a number of other parties. No statement contained the land in controversy. Thus it is seen there was by the owner a general request of the tax collector to send a statement of the amount of taxes owing on lands W.H. Entrekin had been deeded by Gammels. It is shown further that the amount of land owned by W.H. Entrekin in Lamar County was constantly changing; frequently he was being deeded and he was deeding away lands in that County. This general request placed on the tax collector the job of searching the records and determining accurately what lands were owned in that County by W.H. Entrekin, whether they were assessed in his name or not. Miss Entrekin did not give him a description of the lands on which she wanted to pay the taxes. She was the one who had been paying the taxes and presumably she could have given the tax collector such description. The collector was under no duty to make that kind of a search. He could not assume responsibility for being accurate about that even had he, as an accommodation, made an effort to make the search, which, apparently, he did. No tender of payment was made to, or refused by, the collector. This Court has never held the foregoing combination of circumstances to be, in legal effect, a payment of taxes. The case is controlled, under its facts, by the rule announced in Neal v. Shepard, 157 Miss. 730, 128 So. 69, 70, in which this Court said: "The point then gets down simply to this: May a taxpayer be held to have made a valid tender, against which no tax sale can afterwards be made, when without more he goes to the tax collector's office and offers to pay on `all my residence lands,' or on `all the Smith residence lands,' or on `all the McRae residence lands'? And we answer this question in the negative."
This renders it unnecessary for us to pass upon the contention of appellees, in respect to the question under consideration, that even though the taxpayer had made a legally effective offer to pay the taxes, such act would not invalidate the title of appellees, the act not being shown of record and appellees being, as they claim, innocent purchasers for value.
Appellants offered to prove by one Mullins and Miss Slade that some of the minutes of the Board pertaining to the assessment and sale were not signed by the President until after the adjournment of that meeting of the Board. Mullins was a member of the Board and Miss Slade the deputy clerk thereof during the period of assessment and sale in question. The Chancellor held that proof incompetent. As heretofore stated, the minutes appear regular on their face. This was an effort to contradict them by oral proof in a collateral attack. Appellants cite Gardner v. Price, 197 Miss. 831, 21 So.2d 1; Brand v. Board of Supervisors, 198 Miss. 131, 21 So.2d 579, and Merchants Mfg. Bank v. State, 200 Miss. 291, 25 So.2d 585, in support of their contention that this oral proof was competent. In these cases the facts were shown by the minutes themselves — not by oral proof contradicting them. Oral proof to contradict, alter or change minutes regular upon their face is not competent. Smith et al. v. Board of Supervisors, 124 Miss. 36, 86 So. 707; Yazoo Delta Lumber Co. v. Eastland, 104 Miss. 553, 61 So. 597; Childress v. Carley, 92 Miss. 571, 46 So. 164, 131 Am. St. Rep. 546; Mullins v. Shaw, 77 Miss. 900, 27 So. 602, 28 So. 958.
Appellants also offered to show by said two witnesses that in their opinion the name of the President of the Board appearing to be signed to some of the minutes was not his genuine signature; that his name had been signed by some one else. The court refused to receive that testimony. Appellants say that was reversible error. What we have just said as to contradicting minutes by oral proof applies with equal, if not greater, force to this situation. The President of the Board had been dead a number of years when this case was tried. He was not available to verify his signature. It had been twenty-two years since the minutes were adopted. Official records, required by law to be kept, import verity. Childress v. Carley, supra. They deal with, and dispose of, property, liberty and lives of the litigants. There must be an end and finality to such proceedings. To permit witnesses, years after the judicial acts have taken place, to give to triers of fact who might accept them oral opinions that signatures of officials appearing upon official records were not genuine, would produce utter chaos in judicial procedure. Nothing would ever be settled. To illustrate: Suppose one be duly sentenced to the penitentiary for life. Years later he offers witnesses who are willing to say that in their opinion the signature of the trial judge on the minutes of the court imposing such sentence, and even of the Presiding Justice of this Court on the minutes affirming the sentence, were not the genuine signatures of those officials Would such testimony be competent? If so, the result of its admission, as determined by the triers of fact, would have to be accepted. This would produce judicial turmoil. In the language of Judge Arnold in McAllum v. Spinks, 129 Miss. 237, 91 So. 694, 696, ". . . it would cut the throat of reason and knock the brains out of common sense." The trial court was correct in holding that the evidence under consideration was incompetent.
In view of the foregoing, it is not necessary for us to pass upon the contention of appellees that after the lapse of some twenty two years, during which time appellants have paid no taxes whatever on the lands in question, that appellants are estopped by laches to question the validity of the tax sale.
We have examined into the merits of the other attacks by appellants upon the tax levy constituting the basis of the tax sale in question. We find no invalidity in the assessment or the sale.
Affirmed.