Opinion
No. 36179.
October 28, 1946. Suggestion of Error Overruled November 25, 1946.
1. TAXATION.
Where order of board of supervisors definitely fixed date for sale of tax delinquent land and recited that no sales of land had been made for the delinquent taxes thereon at regular time fixed by law, it was unnecessary that the land be described in order (Code 1930, sec. 3252).
2. TAXATION.
In suit to confirm title to land derived by patent from State based upon a tax sale made on July 6, 1931, bill was not defective for failure to allege that sheriff and tax collector had "immediately" filed list of lands sold to State for taxes with chancery clerk following date of such sale, since applicable code sections did not then so require (Code 1930, secs. 3252, 3256).
3. EQUITY.
Allegation of bill respecting filing date of document controlled over an attached exhibit not showing when document was filed.
4. TAXATION.
Bill of complaint to confirm title to land, derived by patent from State based upon a tax sale, alleged necessary jurisdictional facts, and stated a cause of action.
APPEAL from chancery court of Calhoun county, HON. V.D. ROWE, Chancellor.
Paul M. Moore and W.J. Evans, both of Calhoun City, for appellant.
The lower court erred in sustaining the demurrer herein and the bill of complaint should not have been dismissed by the court. This was a general demurrer incorporated in the answer without even having the certificate by counsel as required by Sec. 377 of the Code of 1930, and in addition thereto the appellant not only claimed title to this land by virtue of a tax title, which we expect to show is perfectly valid, but also by virtue of the two year statute of limitation as provided for by Section 717 of the Code of 1942. Then it certainly follows that this general demurrer should have been overruled.
See Griffith's Chancery Practice, Sec. 293.
When the appellant filed a certified copy of the list of lands sold to the State of Mississippi, certified to by the sheriff as filed in the chancery clerk's office, then he made out a prima facie case that the assessment and sale of the land were legal and valid.
Code of 1930, Sec. 1578; Code of 1942, Sec. 1739; Griffith's Chancery Practice, Sec. 220.
This sale was made in July 1931 and was sold under Section 3252 of the Code of 1930 and governed by the case of Bass v. Batson, 171 Miss. 273, 157 So. 530. This sale was made prior to the passage of the law in October 1931 fixing two regular dates on which delinquent lands should be sold.
Lists of land sold to the State and to individuals not made at the regular time shall be filed in the office of the clerk of the chancery court within the same relative period of time after the sale as is allowed for filing such lists after sales at the regular time.
Roebuck v. Bailey, 176 Miss. 234, 166 So. 358; Martin v. Board of Sup'rs of Winston County, 181 Miss. 363, 178 So. 315; Clanton v. Callender, 198 Miss. 614, 22 So.2d 487; Gibbs et al. v. Dortch, 62 Miss. 671; Shelby v. Burns, 153 Miss. 392, 121 So. 113; Henry Brannon Son v. Pringle, 94 Miss. 215, 47 So. 674; Code of 1930, Secs. 3252, 3256.
Compare Salter et al. v. Polk et al., 172 Miss. 263, 159 So. 855; Code of 1906, Sec. 4367; Hemingway's Code of 1927, Sec. 8297.
Appellant has a legal and valid tax title to said land, and in addition thereto he has a valid and legal title to said land by adverse possession under the two year statute of limitation.
Jones v. Russell, 187 Miss. 827, 194 So. 290; Lee v. Smith, 189 Miss. 636, 198 So. 296; Code of 1942, Sec. 717.
Stone Stone, of Coffeeville, for appellee.
This bill does not, nor does the original bill, aver that the pretended order fixing the sale was filed at the proper time and that the sale was fixed at a time that was proper under the law.
The bill does not aver, nor does the amendment aver, that the sale was advertised, except to say that it was advertised as provided by law and the order of the board, and this is only a conclusion of law and it is not averred that the land was advertised to be sold on a day set, and at the door of the courthouse, and in Calhoun County, Mississippi, this being a positive requirement of the law.
The averment is made that the list of all lands struck off to the State at the said pretended sale was made, certified to and filed in the office of the chancery clerk, but the averment is not made that it was filed immediately after the sale. This is a positive requirement for averment and for proof according to the law of the State of Mississippi.
Clanton v. Callender, 198 Miss. 614, 22 So.2d 487.
The trial court sustained a general demurrer to the bill of complaint of the appellant Joe Harlan wherein he sought to confirm his title to certain land derived by patent from the State based upon a tax sale thereof made on July 6, 1931. Thereupon the complainant declined to plead further and the bill was dismissed.
In our opinion the bill of complaint alleged all of the necessary jurisdictional facts to show that it had been duly and legally assessed, that the taxes were due and delinquent, that no lands which were delinquent for taxes for the year 1930 had been sold at the regular time fixed by law therefor in April 1931, that the proper orders were made by the board of supervisors for the sale to be made on the first Monday, the 6th day, of July, 1931, that the same were duly and legally advertised and sold pursuant to an order of the board entered at the May, 1931, meeting fixing the first Monday in July, 1931, as the date for the sale, and a similar order made at the June, 1931, meeting of the board fixing "the first Monday of July," without specifying the year, for the date of such sale.
The order of the board entered at the May meeting failed to describe the lands to be sold, but the same was in all respects sufficient, since it definitely fixed the date for the sale and recited that no sales of land had been made for the delinquent taxes thereon at the regular time fixed by law. It was unnecessary that the lands should have been described in the said order. Bass v. Batson, 171 Miss. 273, 157 So. 530.
The order entered at the June, 1931, meeting of the board described the land and ordered the sale to be made on the "first Monday of July" without specifying the year, as aforesaid, and it was no doubt entered upon the erroneous theory that the first order was insufficient on account of the failure to therein describe the land to be sold.
One of the grounds of the demurrer was the failure of the bill of complaint to allege that the Sheriff and Tax Collector had "immediately" filed the list of lands sold to the State for taxes with the Chancery Clerk following the date of such sale. If the demurrer was sustained upon that ground, then the action of the trial court was erroneous for the reason that Sections 3252 and 3256, Code 1930, did not then so require. The case of Salter et al. v. Polk et al., 172 Miss. 263, 159 So. 855, holding that such a list should be immediately filed, was concerned with a tax sale made in 1926 for the unpaid taxes for the year 1925, when Section 4367, Code 1906, Section 7006, Hem. Code of 1917, required the list to be immediately filed in the office of the Chancery Clerk, whereas Sections 3252 and 3256, Code 1930, supra, permitted the Sheriff and Tax Collector in the instant case to file his list on or before the first Monday in September, 1931, which was done according to the allegations of the bill of complaint herein.
It is true that the copy of the list, so far as it pertains to the land here involved which is filed as an exhibit to the bill of complaint, does not show the date when the same was filed. This being true the allegation of the pleader will control as to when the same was filed, since the exhibit is not in conflict therewith.
In our opinion the bill of complaint is in all respects sufficient to state a case for confirmation of the tax sale to the State and of the patent through which the complainant claims, as is prayed for therein.
Reversed and remanded.
Sydney Smith, C.J., did not participate in this decision.