Opinion
No. 37737.
January 8, 1951.
1. Taxation — notice to taxpayers to appear and object to assessments — jurisdiction.
The notice to the taxpayers to appear and object to assessments is jurisdictional and that such notice was given must be made affirmatively to appear on the minutes of the board of supervisors without which a tax sale under such an assessment is void.
2. Adverse possession — chain of title, relevancy of — enclosure — wild lands.
Although the chain of title under which party in adverse possession has claimed is not one of perfect record title, it has great bearing on the claim of adverse possession; and when the evidence shows that in numerous conveyances the land was included with other lands belonging to claimant and that using it as a pasture, he had it enclosed by fence as a part of his other lands, sold timber from it, used it generally, as other land of the same character was used by the owners and all the taxes on it were paid by claimant along with and as a part of his other land, all for more than ten years, a decree that claimant had acquired title by adverse possession was justified.
Headnotes as approved by Roberds, P.J.
APPEAL from the chancery court of Copiah County; V.J. STRICKER, Chancellor.
E.R. Arrington, for appellants.
Defendant must have an interest in the land or his defense will not be heard. Chrisman v. Currie, 60 Miss. 858.
No person can question the validity of a tax sale unless he can first show that he or those under whom he claims had some title to the property at the time of the tax sale. 26 R.C.L. 446.
An action to cancel tax sale can only be brought by the owner at the time of the tax sale or one holding through him. Wilkinson v. Hiller, 71 Miss. 678, 14 So. 442; 51 Am. Jur. p. 979, Sec. 1136; Hopper v. Chandler, 183 Ark. 469, 36 S.W.2d 398, 399; Goldsbury v. MacConnell, 73 Colo. 351, 215 P. 872; Dyer v. Marriott, 89 Kansas 515, 131 P. 1185, 1188; 45 L.R.A. (N.S.) 93, Ann. Cas. 1915A 93; Smith v. Newman, 62 Kansas 318, 62 P. 1011, 1012; 53 L.R.A. 934; Smith v. Whitney, 105 Mont. 523, 74 P.2d 450, 454; Delaware L. W.R. Co. v. Tobyhanna Co., 228 Pa. 487, 77 A. 811, 21 Ann. Cas. 161.
The burden of proof was on appellees to prove their title by adverse possession and having failed to prove title by adverse possession, cross-bill of appellees should have been dismissed and decree entered confirming title in appellants, decree pro confesso having been entered against the unknown heirs of the record owner, L.B. Henry, prior to the time this cause came on for hearing.
With reference to the burden of proof being on cross-complainants see the case of Southern Naval Stores Co. v. Price, 202 Miss. 116, 30 So.2d 505.
The proof was insufficient to establish that C.H. Parsons had acquired title by adverse possession against L.B. Henry, the admitted record owner at the time of the tax sale.
If appellee had proved that Mrs. McLemore was in possession of said lands, it would have been necessary for them to go further and prove that her occupation was adverse to L.B. Henry.
There was no evidence whatsoever that Mrs. McLemore ever occupied the lands in any manner that she deeded to L.B. Henry in 1910.
The claim of ownership of C.H. Parsons, made after an absence of 21 years, according to his testimony, is not made in good faith. His testimony shows that he never asserted himself to be the owner of the lands adversely to L.B. Henry. In fact, he testified that his claim was "subject to the claim of L.B. Henry". While he testified that he used said lands for pasture purposes his use of said lands was not shown to be continuous and were not sufficient to put the true owner on notice and the acts shown were not sufficient to establish title by adverse possession even if same had been under the claim of ownership.
The use of said lands, such as was testified to by C.H. Parsons, was not hostile to L.B. Henry but on the other hand was subordinate to the title of L.B. Henry, the record owner.
"It is not necessary, for the purpose of showing the recognition of an outstanding superior title, to prove any express declaration to that effect by the occupant of the property. Such recognition may be just as effectively established by proof of acts and conduct on his part, which are, in themselves, a recognition of a superior right in another, or which have a tendency, when considered with other evidence, to establish that fact." 1 Am. Jur. p. 886, Sec. 164.
Not only do the acts testified to by C.H. Parsons show that he did not assert himself to be the owner of said lands but there is an express declaration that his claim was subject to the claim of L.B. Henry.
In the case of Cotten v. Cotten, 203 Miss. 316, 35 So.2d 61, it was held that a sale to the State for taxes has the effect of breaking the continuity of adverse possession even where the claimant continues in possession.
In this case Parsons abandoned the lands prior to the tax sale — abandoned claim of ownership from the time he first entered; he never intended to pay any taxes on it and according to his own testimony he had not used this land since 1930 or seen it in twenty-one years.
Did C.H. Parsons exercise toward the property the same character of control which he used toward property actually his? The evidence shows that he did not exercise the control over this property that he exercised over his own property. He didn't want to get involved. A mere passive possession without intending to claim the property is insufficient regardless of the length of time it continues, or however open, notorious, or exclusive it may have been. 1 Am. Jur. p. 866, Sec. 130.
In Winsted v. Winsted, 204 Miss. 787, 38 So.2d 118, the Court not only held that a purchase of land by the State must be presumed valid and its patents presumed regular but held further that "regardless of the extent and quality of defendant's adverse possession its period was tolled by sale to the State for taxes."
In the absence of appellants proving title by adverse possession in themselves prior to the tax sale, the burden of proof being on them, it was not necessary that appellants prove anything but appellants were entitled to a decree confirming title in them, decree pro confesso having been entered against the heirs of L.B. Henry, the owner at the time of the tax sale.
The fact that the advertisement of the tax sale was first published in the newspaper on June 12 is wholly insufficient to impeach the minutes showing that the order was entered on June 6. The clerk in surmising that it could not have been done overlooked the probability that the newspaper made a "proof" prior to the actual printing of the advertisement for publication. The minutes speak for themselves.
Appellants respectfully submit that the court erred in permitting the introduction of the minutes of the Board of Supervisors pertaining to the legality of the assessment as it was not shown that appellees were the owners at the time of the tax sale or claimed through the owner at the time of the tax sale to the State.
Henley, Jones Woodliff, for appellees.
I. Tax sale was void because assessment was invalid. Downing v. Starnes, 35 So.2d 536; Federal Land Bank v. Cox, 183 Miss. 250, 183 So. 482; Gordon v. Smith, 154 Miss. 787, 122 So. 762; Henderson Molpus Co. v. Gammill, 149 Miss. 576, 115 So. 716; Secs. 9786, 9788, 9789, 9796 Code 1942; Merchants Manufacturers Bank v. State, 200 Miss. 291, 25 So. 585; Russell v. Copiah County, 153 Miss. 459, 121 So. 133; Rawlings v. Ladner, 174 Miss. 611, 165 So. 427; Shark v. Smith, 180 Miss. 887, 178 So. 595.
II. Tax sale void because not made at the time and place provided by law and the order of the board of supervisors purporting to authorize a sale at an irregular date was entered at a meeting at which the minutes were not signed and approved in the manner provided by law. Brand v. Newton Co., 198 Miss. 131, 21 So.2d 579; Gardner v. Price, 197 Miss. 831, 21 So.2d 1; Sec. 6960 Code 1927; Secs. 211, 3247 Code 1930; Miller v. Lafayette Co., 198 Miss. 320, 22 So.2d 372; Simpson Co. v. Burkett, 178 Miss. 44, 172 So. 329.
III. Descriptions in assessment and tax sale were vague, indefinite and uncertain and were not cured by parol evidence. Albritton v. Fairley, 116 Miss. 662, 162 So. 172; Jefferson v. Walker, 199 Miss. 705, 24 So.2d 343; Meyerkort v. Warrington, 19 So.2d 433, 20 So.2d 707; Reed v. Heard, 97 Miss. 743, 53 So. 400.
IV. Complainants failed to meet burden of proof to establish valid tax title. Bailey v. McRae, 176 Miss. 557, 169 So. 887; Cohurn v. Hunt, 54 Miss. 675; Jones v. Rogers, 85 Miss. 802, 38 So. 742; Johnson v. Lake, 162 Miss. 227, 139 So. 455, 88 A.L.R. 262; Salter v. Polk, 172 Miss. 263, 159 So. 855.
V. Appellees established a good title to the property involved in this suit. Am. Jur. Vol. 1, p. 889 (Note 20); Carruth v. Gillespie, 109 Miss. 679, 68 So. 927; Douglas v. Skelly Oil Co., 201 Miss. 53, 28 So.2d 227; Downing v. Starnes, 35 So.2d 536; Ford v. Wilson, 35 Miss. 490, 72 Am. Dec. 137; Foster v. Jefferson Co., 202 Miss. 629, 32 So.2d 126; Hewing v. Blake, 110 Miss. 225, 70 So. 247; Ittawamba Co. v. Sheffield, 195 Miss. 359, 13 So.2d 649; Jones v. Gulf Refining Co., 202 Miss. 705, 34 So.2d 735; Jones v. State, 202 Miss. 705, 32 So.2d 435; Leggett v. Norman, 192 Miss. 494, 6 So.2d 578; McAllister v. Honea, 71 Miss. 256, 14 So. 264; Meyerkort v. Warrington, 19 So.2d 433; Nixon v. Carco, 28 Miss. (6 Cush.) 414; Scarborough v. Native Lumber Co., 118 Miss. 138, 79 So. 84; Shepherd v. Cox, 191 Miss. 715, 4 So.2d 217, 136 A.L.R. 1346.
This is a proceeding to determine title to ten acres of land. Appellants, as complainants in the bill, assert they are owners thereof as grantees of the patentee under a tax sale to the State of Mississippi. Appellees, defendants in the lower court, controvert the claim of appellants, and, by cross-bill, say they (except defendant C.H. Parsons) are the owners, with different interests, through record title and adverse possession. The chancellor dismissed the bill and sustained the cross-bill. Complainants appeal.
The first question is the validity vel non of the tax sale. Cross-complainants say the sale was illegal for the reasons (1) the description was bad; (2) that the minutes of the supervisors ordering the sale were signed by the president after the board adjourned; (3) that the minutes fail to show the supervisors ever equalized the assessments, and (4) the minutes fail to show that notice was given the taxpayers to appear and protest the assessments. The last contention is well taken, and, therefore, we do not pass upon the other questions.
The land was sold July 7, 1930, for non-payment of taxes for the year 1929. Patent issued by the state April 28, 1947. Patentee conveyed to appellants January 27, 1949. The assessment proceedings occurred in 1928, beginning with the July meeting. Copies of all of the proceedings are in the record. The July 23rd minutes recite the board had equalized the assessments and ordered that notice be given taxpayers to appear, if they desired, at a meeting of the board to be held the first Monday in August and contest the assessments, setting out the form of the notice. However, nothing whatever appears in any subsequent minute, or outside such minutes, for that matter, showing that the notice was ever published. In Berryhill v. Johnston, 206 Miss. 41, 39 So.2d 530, 531, this court said, "By an unbroken line of decisions, this Court has uniformly held that (Hn 1) the giving of such notice is jurisdictional and is necessary in order to confer on the board of supervisors the jurisdiction to equalize and approve the assessment rolls, and the fact that such notice was given must affirmatively appear upon the minutes of the Board of Supervisors", citing the prior Mississippi cases so holding. For the foregoing reason the tax sale was void and it did not vest in the State, or those claiming under its patent, any title to the land.
As to the record title of appellees, it is shown that on July 19, 1910, J.C. McLemore and his wife Mrs. M.O. McLemore deeded the ten acres of land to L.B. Henry. The consideration for this deed was love and affection and $10.00, Mrs. McLemore being a sister of Henry. The land is described as a tract of ten square acres in the northwest corner of SE 1/4 of SW 1/4, Section 21, T. 2, R. 3 West. Henry remained in possession of the land some seven or eight years, when he moved therefrom to other parts. He had died before institution of this proceeding and his unknown heirs were made parties thereto and complainants took a decree pro confesso against them and they did not contest the cross-bill of appellees. The question naturally arises, under these circumstances, whether, since it was adjudged complainants had no title to the property, they had any right to contest the claim of cross-complainants — whether that right did not rest alone in the heirs of Henry, who did not contest the cross-bill, which set out a good chain of title in cross-complainants with proper affidavit attached thereto. However, we pass over those questions, and revert to the record title of appellees. It is alleged in the bill that when Henry left the property about 1918 he re-deeded it to his sister Mrs. McLemore, although there is no proof of that other than the allegation and such presumption as might arise from subsequent conveyance of the property by Mrs. McLemore. In any event, it is disclosed that on November 7, 1916, Mr. McLemore conveyed to Mrs. McLemore 220 acres of land "less 10 acres heretofore conveyed to L.B. Henry". On February 19, 1918, after Henry left, Mrs. McLemore conveyed all of the pine timber on the entire 220 acres, including the 10 acres in question. Thereafter there are fourteen conveyances in the asserted chain of title of appellees. Ten of these cover the ten acres; four of them purport to omit ten acres, with indefinite description thereof. Of those which include the ten acres two were executed as far back as 1919 and one in 1922. All of the four instruments which convey land "less 10 acres" stem from execution of a trust deed by C.H. Parsons to the Canal Bank Trust Company of New Orleans and the foreclosure of that trust deed. Parsons testified that he undertook to omit the ten acres from his trust deed not because he did not own or claim it but because after his purchase from Graves in 1922, which included the ten acres, he had heard of a rumor about Henry's title and he did not wish to warrant the title to the ten acres under the circumstances. Except then for the Henry trust deed and the other three instruments resulting from the foreclosure of that trust deed every other conveyance, being fifteen in all, including the McLemore timber deed in 1918, covered the ten acres in question. (Hn 2) This does not show a perfect record title in appellees but the chain of title thus disclosed has great bearing upon the claim of appellees of title by adverse possession.
Reverting now to the other evidence of adverse possession by appellees, it is seen the ten acre tract was a part of a larger tract — a part of the McLemore homestead property. There is evidence from which the chancellor might have concluded that the ten acres, along with the rest of the McLemore tract, were in the exclusive possession and control of the respective grantees from the time Henry left the property about 1918 to the time of the trial in 1949; that the entire tract was under one fence; that it was used as a pasture and the timber was sold and cut from the ten acres; that there were no improvements on the ten acre tract; that it grew up in bushes and timber, and the parties put it to such use as an owner would have done considering the character of the land. Photostats of the assessment rolls disclose that, although there was a purported sale to the state in 1930, the entire SE 1/4 of the SW 1/4, which would include the ten acres, beginning the year 1932 and extending to the year prior to the filing of the bill, was assessed to the respective grantees in appellees' chain of title, and such taxes were either paid or the property redeemed from sales thereof. It might be added that while Parsons said he omitted the ten acres from his trust deed to Canal Bank Trust Company, for the reason heretofore stated, he also said that when he bought the McLemore tract in 1934, "It was shown to us; we bought it and used it like we used all other lands during the time we possessed it"; that no one ever made any claim to it during the time he owned the land from 1922 (he had bought the timber thereon in 1919) to 1937. Other evidence of adverse title might be set out. All in all we think the evidence amply sufficient to sustain the finding of the chancellor that appellees had acquired title to the property in controversy, especially in view of the fact that this was what the cases term "wild land". McCaughn v. Young, 85 Miss. 277, 37 So. 839.
Affirmed.
Arrington, C., took no part in the consideration of this case.