Opinion
No. 31834.
October 21, 1935.
TAXATION.
Where, on January 2, 1934, landowner executed option to federal government to sell land which was accepted by government on January 11, landowner held not relieved from its personal obligation to pay 1934 taxes, notwithstanding government received land free from tax lien (Code 1930, sections 3120-3122, 3132).
APPEAL from circuit court of Adams county.
HON. R.E. BENNETT, Judge.
Action by the Gloster Lumber Company, Inc., against Adams County. From an adverse judgment, plaintiff appeals. Affirmed.
F.A. Anderson, Jr., of Gloster, for appellant.
The United States were vendees in possession of said land in Adams county, Mississippi, during all but eleven days of the year 1934 and as such they are the party assessable for the purpose of taxation for the year 1934 and not the Gloster Lumber Company.
The appellant further contends that regardless of the fact that the tax lien date, namely, January 1, 1934, had passed when the United States elected to purchase said land and that by the laws of Mississippi a lien was on the land for the purpose of taxation that said rule does not apply when lands are being sold to, or are the property of the United States or of any department of government, state, county or federal.
Watson v. Sawyer et al., 54 Miss. 64; Francis v. Washburn, 5 Hawy. 294; Miller v. Corey, 15 Iowa, 166; 61 C.J. 211, 360, 367; Morris v. Board of Commissioners of Love County, 177 P. 900; Cole v. State, 80 S.E. 487, 73 W. Va. 410; New Orleans R. Co. v. Negretten, 40 Fed. 428; Bond v. Brand, 74 S.W. 673; Bruce v. Jones, 117 Miss. 207; Prescott v. Bebee, 17 Kan. 320; Robertson v. State Land Office Comm., 6 N.W. 559; In re New York Indians, 5 Wall. (U.S.) 761, 18 L.Ed. 709; Merrill R., etc., v. Merrill, 96 N.W. 686, 119 Wis. 249; Spangler v. York County, 13 Pa. St. Rep. 328; Willard v. Blout, 11 Ireland, 624.
The appellant contends that due to the fact that the land was sold to the United States under this contract and/or option of purchase after the tax lien date had passed does not alter the rule of a vendee in possession being liable for, or assessable for taxes on said land for the year 1934, as the vendee in possession was the United States government.
61 C.J. 418; State v. Minidoka County, 298 P. 366; State v. Locke, 219 P. 720, 30 A.L.R. 407; City of Wichita v. Anderson, 237 P. 1024; Gassaway v. City of Seattle, 100 P. 991; State v. Reed, 272 P. 1008; City of Laurel v. Weems, 56 So. 451; Territory v. Perrin, 9 Ariz. 316, 83 P. 361; Bann v. Burnes, 39 Fed. 892; Gachet v. City of New Orleans, 27 So. 348; Buchout v. City of New York, 68 N.E. 659.
W.A. Geisenberger, of Natchez, for appellee.
It is true that the overwhelming weight of authority is to the effect that "a vendee in possession" is liable for taxes assessed against the property of which he has possession, but a study of the cases will disclose that the vendee was in possession by virtue of either (a) an executory contract of sale, or (b) under bond for title.
In the instant case, however, the contract between them being only an option under the terms of which the Gloster Lumber Company agreed to sell to the United States the lands described, provided that the United States, within the time limited in the option, requested the Lumber Company to sell and convey said lands to the government. This, it is plain, is no executory contract of sale. The government did not obligate itself to request the sale of the lands to it by the Gloster Lumber Company, but, as the caption of the instrument shows, merely obtained "an option" for the purchase of the property; and this option itself was not executory until the second day of January, 1934, after the lien for taxes had become fixed, and after the Gloster Lumber Company had become liable for the payment of said taxes.
This is not a case involving a question of sale of these lands for taxes, but only the liability of the Gloster Lumber Company for the payment of said taxes, which, under section 3122 of the Code of 1930 of the state of Mississippi, constitute a debt recoverable by proper action. The question, therefore, is not what rights the United States government might have to prevent the sale of said lands if they were offered for sale for taxes, but only whether or not the Gloster Lumber Company, by granting an option to the government and permitting it to enter upon the lands and take possession thereof, can claim thereby to be relieved from the payment of taxes on the property in face of the fact that the option was not executed until after the taxes became a fixed indebtedness of the Gloster Lumber Company and a lien against said lands, and in face of the further fact that the Gloster Lumber Company delivered no deed to the government until the twenty-eighth day of December of the year in which said option was granted, and in spite of the further fact that no deed whatsoever to any of the property was recorded until better than ten (10) days beyond the date fixed by law for the sale of lands for taxes, and the deed, when filed, was for a part only of the lands involved; and notwithstanding the further fact and circumstance that the government has paid no part of the money consideration for the conveyance to it of said lands.
Olds v. Littlehorse Creek Cattle Co., 22 Wyo. 336, 140 P. 1004; 3 Pomeroy's Eq. Juris. 3d, sec. 1260 and note; Lysaght v. Edwards, 2 L.R. Ch. Div. 499; Milwaukee v. Milwaukee County, 95 Wis. 424, 69 N.W. 796; People v. Shearer, 30 Cal. 645, 648; 61 C.J., Taxation, sec. 187 (g), p. 211, sec. 181 (b), p. 206; 26 R.C.L., Taxation, sec. 318, p. 358.
Argued orally by F.A. Anderson, Jr., for appellant, and by W.A. Geisenberger, for appellee.
This is an appeal from a judgment affirming an order of the board of supervisors of Adams county denying the prayer of a petition by the appellant to be relieved from the payment of taxes assessed to it for the year 1934, as the owner of certain land situated in Adams county.
On and before the first day of January, 1934, the appellant owned the land. On January 2, 1934, it executed an option to the secretary of agriculture of the United States of America by which it offered to sell the land to the government, giving it three months within which to accept the offer. On the eleventh day of January the offer was accepted by the government, and it went into possession of the land. The execution of a deed thereto awaited the government's approval of the appellant's title to the land and was not executed until December 28, 1934.
The appellant's contention, as stated by its counsel, is "that the United States were vendees in possession of said land in Adams county, Mississippi, during all but eleven days of the year 1934 and that as such they are the party assessable for the purpose of taxation for the year 1934 and not the Gloster Lumber Company."
The assessment of property for taxation is governed wholly by our revenue statutes; the pertinent sections here being 3120, 3121, 3122, and 3132, Code of 1930.
Section 3120. All taxes assessed shall be a lien upon and bind the property assessed from the first day of January of the year in which the assessment shall be made.
Section 3121. All taxable property brought into the state or acquired or held by any person before the first day of January shall be assessed, and taxes thereon paid for the ensuing year.
Section 3122. "Every lawful tax assessed, levied or imposed by the state, or by a county, municipality, or levee board, whether ad valorem, privilege, excise, income, or inheritance, is a debt due by the person or corporation owning the property or carrying on the business or profession upon which the tax is levied or imposed, whether properly assessed or not, or by the person liable for the income, inheritance or excise tax, and may be recovered by action; and in all actions for the recovery of ad valorem taxes the assessment roll shall only be prima facie correct."
Section 3132. "It shall be the duty of each person to make out and deliver to the tax assessor, upon demand, and if not demanded, not later than the first day of April in each year, a true list of his taxable property with the value of each article, specifying all such property of which he was possessed on the next preceding tax lien date in his own right."
Under these sections property is assessable to, and taxes due thereon are payable by, the person who owned the property on the first day of January of the year in which the property is assessed for taxation. We will assume, as counsel for appellant claims and counsel for appellee admits, that the government received the land free from the lien thereon for taxes, but that does not relieve the appellant from its personal obligation to pay the taxes provided by section 3122.
Affirmed.