Summary
In McNatt, supra, the court held that the separate assessment by the tax collector of minerals, omitted from the roll of the assessor, and actually entered on the roll by the tax collector, and subsequent payment of taxes thereon by the owner, was a valid assessment under the statute.
Summary of this case from Weston v. DantagnanOpinion
December 31, 1948. On Suggestion of Error
1. Taxation — assessment of mineral interest — assessment by tax collector upon refusal of assessor to do so.
Where the owner of all the oil, gas and other minerals in or under described land took his deeded description to the assessor in February and requested that the said minerals be separately assessed to him, furnishing to the assessor truthfully all the pertinent facts as to value and otherwise, and the assessor refused to make the separate assessment and asserted that he would continue to so refuse under directions of the board of supervisors, and the mineral owner thereupon reported all the stated facts to the sheriff and tax collector who thereupon made and entered the separate assessment of the minerals at the proper place on the tax roll in his hands, the assessment so made by the tax collector was, under the circumstances, a valid assessment as of property left unassessed by the assessor, and the timely payment of the taxes by the mineral owner on the said assessment was sufficient to prevent the mineral interests from being validly sold for alleged delinquent taxes. Section 9901, Code 1942.
2. Taxation — separate interest left unassessed by assessor — assessment by tax collector — presumption of compliance with other statutory requirements.
Where the sheriff and tax collector has validly made an assessment of landed interests left unassessed by the assessor it will be presumed, in the absence of evidence to the contrary, that the tax collector duly reported his said assessment to the board of supervisors, and the taxes in the collector's assessment having been paid into the respective state and county treasuries, it will be further presumed, in the absence of any order by the board, that the board approved the collector's assessment. Sections 9796 and 9901, Code 1942.
3. Taxation — assessment — refusal by assessor to assess separate interest, and assessment has been made by tax collector, tax payer not under duty to pursue assessment matter further.
When the tax collector has made a valid separate assessment of a separate landed interest, left unassessed by refusal of the assessor to assess the separate interest, the tax payer was not required to go before the board of supervisors with the undue burden to insist upon an order by the board for the separate assessment when the action of the assessor in refusing to make the separate assessment was on the directions of the board, nor was the tax payer required to institute mandamus proceedings.
4. Taxation — tax sales — tax purchaser not innocent purchaser for value.
A tax purchaser at a tax sale is not an innocent purchaser for value. He takes the title subject to all its infirmities.
Headnotes as approved by Roberds, J.
APPEAL from the chancery court of Washington County, J.L. WILLIAMS, Chancellor.
Green Green, for appellant filed an elaborate brief, which discussed and developed in detail the following points:
Point I — Tax assessment presupposes law conformity by officials and violation thereof divests power of sale.
Point II — No valid assessment of separately owned minerals, under Revenue Agent v. Clark, 80 Miss. 134-151, 31 So. 216, and the salutary doctrines therein contained seriously impaired by this majority opinion needlessly.
Point III — The doctrine of Darnell v. Johnson, 109 Miss. 570, 68 So. 780, subsequently legislatively integrated into Section 9770, Code of 1942, judicially impaired.
Point IV — The rights established under Scott County v. Dubois, 158 Miss. 245, 130 So. 106-107, interpreting Code Section 9901, Code of 1942, fundamentally impaired to the prejudice of McNatt with an impairment of the obligation of his contract with the State.
Point V — Disregard salutary rule of property established in North v. Culpepper, 97 Miss. 730, 53 So. 419, and Jones v. Moore, 118 Miss. 68, 79 So. 3.
Point VI — Estoppel.
Point VII — Mississippi abhors double taxation and will, if possible, make every construction against it.
Point VIII — A sale under an assessment thus beclouded is void.
Point IX — Authorization conferred by Section 9815, disregarded and that therein authorized wrought full power to make appropriate assignment as to these minerals.
L.A. Wyatt, also for appellant.
In announcing the decision as rendered, one thing struck me above all others and that is the conception of the court of the question which was before it for decision. It is stated in the decision that: "It is seen, therefore that the narrow point for decision is whether there was a valid separate assessment of the minerals."
It is submitted that the question before the court is much broader than as stated by the court, as above quoted. If the appellant in this case had not gone to the chancery clerk (clerk of the Board of Supervisors), and had not obtained a separate assessment of his minerals from the tax collector, who is authorized under Section 9901, Code of 1942, to make assessments where the assessor has left property unassessed, and if the appellant in this case had not paid taxes to the State and County under such assessment, it would seem that the court's statement of the question before it in this case would be accurate.
However, the facts of the case must always, of course, prescribe the legal question involved, and it is respectfully submitted that the real question involved in this case is much broader than that given by the court, and that such question could be more properly stated as follows: Where a mineral owner's request for separate assessment of the minerals is refused by the assessor, and the mineral owner obtains an assessment of minerals from the tax collector and pays taxes within the time and manner prescribed by law under such assessment, would a tax sale of the land itself carry with it the minerals so assessed and upon which taxes were paid.
To pose the point for decision as being the narrow question of whether there was a valid separate assessment of the minerals does not do full justice to the position of the appellant at all. There is involved in this case the question of payment of taxes (the very same taxes which the decision holds were delinquent, and therefore not paid); there is involved in this case the effect of payment of taxes under an assessment made by the tax collector, after the tax assessor had refused to make such an assessment and where it was the statutory duty of the tax assessor to do so; there is involved in this case the effect of such payment of taxes under an assessment by the tax collector where the property owner was prevented from obtaining a proper assessment of his property by the assessor by the refusal and failure of the assessor to do his statutory duty.
It sounds trite to assert before this court the proposition that there can never be a forfeiture for property rights for non-payment of taxes unless there is a delinquency respecting those taxes; and, yet the court in this decision has held contrary to this fundamental principle. The essence of taxation is a payment of money to the State or its subdivision in return for privileges received. The assessment, equalization, hearing of protests, formal approval of the tax rolls, and all other mechanics involved in taxation are only steps toward the ultimate goal of exaction from the property owner of a fair sum due by him in the form of taxes. With deference, the fundamental thing overlooked in this decision is that all of these steps are for the protection and aid of the taxpayer; they were never intended as swords to be used in severing a man from his property who had discharged all his duties to the State by having his property assessed and paying the taxes due thereon. The important thing is that he did have his property assessed and that he did pay his taxes — not who assessed it. So we say that in this case it is not really so important as to whether the assessor or tax collector made a separate assessment of the minerals, nor that such assessment was in the exact from required by law, as it is that the owner who owed a duty to the State to pay the taxes on the minerals did have the minerals assessed and paid taxes to the State on such property.
In this connection, the court could well give effect to the following fundamental principles announced in Blackwell Fourth Ed., 1875, "Power to sell land for non-payment of taxes" —, at page 465: "The delinquency of the owner is the essential fact upon which the power of sale rests. The authority of the government extends only to those cases where the owner neglects to pay the tax in arrears voluntarily. When the owner has performed all of his duties to the government, no court would sanction, under any circumstances, the forfeiture of his rights of property. The law was intended to operate upon the unwilling and the negligent citizen alone. Legislative power extends no further."
In 3 Cooley, Taxation, 2498, Section 1257, (4th Ed. 1924) it is stated: "If the owner or any other person entitled to make payment of a tax shall do so, the lien will not only be discharged absolutely, but all authority to proceed further against the property will be at an end."
Our own court has stated in Metcalfe v. Perry, 66 Miss. 68, 76, 5 So. 232, (1888) as follows: "The right to sell land cannot arise, if the taxes assessed are duly paid. Delinquency is as essential a prerequisite of the power to sell land for taxes as an assessment or levy of taxes, and he, who has paid all the taxes assessed on his property, need not concern himself about a sale of it for taxes. The legislature has not attempted to affect the rights of the owner who has performed his duty by meeting the public charge imposed on his property."
The decision rendered in this case does not mention or discuss in any way the effect of the fact that here the property owner did pay his taxes, that he did get his minerals assessed, despite the fact that the tax official whose primary duty it was to make the assessment refused to do so. It seems unthinkable that under such conditions the property owner would be penalized and his property taken; it seems more unthinkable that the highest court of our state would sanction a forfeiture of property rights in such a situation. The appellant here paid his taxes. How can he lose his property for non-payment of the very taxes he paid?
It is stated in the opinion: "Any inquiry into the reasons for refusal by the assessor separately to assess the minerals overlooks the controlling fact that he did not do so, and results merely in a personal criticism of that official."
This statement squarely overrules the doctrine established in the following cases, and from which, heretofore, there has never been deviation: Bosquet v. Brown, 152 Miss. 171, 119 So. 166 (1928); McLain v. Meletio, 166 Miss. 1, 147 So. 878 (1933); Stegall v. Miles, 194 Miss. 353, 12 So.2d 537 (1943); Beauchamp v. McLauchlin, 25 So.2d 771 (1946).
The court here states as a matter of law that if a tax assessor refuses to assess property, the property owner has one and only one remedy — and that is to hire a lawyer to go into court asking a mandatory injunction requiring the assessor to assess his property. If the property owner does not do this, but instead seeks the advice of the clerk of the taxing authorities of the county (Board of Supervisors) and if such advice is that the tax collector has the authority and will assess the property and will receive taxes due on the property, and that such is the procedure followed in that county for handling the assessment and taxation of such property, and the property owner does this, then nevertheless he has lost the property if the tax collector by chance sells the property for non-payment of such taxes.
Mr. McNatt was able to have his minerals assessed and paid his taxes on the minerals. He was informed by the clerk of the Board of Supervisors, furthermore, that that was the procedure which Washington County (Board of Supervisors) followed in the assessment and taxation of mineral rights. The trial court refused to allow the tax assessor to testify as to the procedure prescribed by the Board of Supervisors for the assessment and taxation of mineral rights, but the assessment roll itself was introduced in evidence. The assessment roll shows that for the year 1943 there were 174 assessments and payments of taxes on mineral rights in exactly the same manner as Mr. McNatt's were handled; and the assessment roll shows that for the year 1944 there were 244 assessments and payments of taxes on mineral rights in the same manner Mr. McNatt's minerals were handled by the taxing authorities in Washington County.
The point is that the taxpayer in this case was only following the procedure as outlined and prescribed by the Board of Supervisors itself, and from Mr. McNatt's standpoint as a taxpayer there was absolutely no need for him to consider "compulsory process" against the tax assessor when the remedy which he sought was made available to him anyway.
To illustrate the unusualness of the principle that the property owner must use "compulsory process" against the assessor, suppose the same principle were to be applied in those cases where the owner of property has attempted to pay the taxes and the tax collector has refused to accept the money for one reason or another. This court has never failed to hold that a tender of taxes is sufficient to constitute payment. Apply the doctrine, however, of this case and we find that purchaser at the tax sale would prevail over the property owner who tried to pay the taxes because "his efforts fell short of available compulsory process by which he may have attained this end". In other words, the property owner would lose his property because he should have hired a lawyer and sued the tax collector in an action to force that official to accept his tax money!
Again apply the principle of this case to those cases where the taxpayer seeks to redeem his property from a tax sale, and the chancery clerk informs him that the property has already been redeemed. Notwithstanding the sincere and genuine efforts of the property owner to redeem his property and discharge his duties to the government by paying his taxes, such property owner would lose his property and the title would mature in the tax purchaser because "his efforts fell short of available compulsory process by which he may have attained this end." In other words, the property owner would lose his property because he should have employed a lawyer and sued the chancery clerk to accept the redemption money and issue a redemption certificate!
It is submitted that the following facts certainly stand out in favor of the appellant and should impel a judgment in his favor:
1. If an assessment by the assessor, rather than by the tax collector, is considered all important, then it should be remembered that appellant sought an assessment from the assessor, and was denied an assessment by that official contrary to his plain and statutory duty under Section 9769 and 9779, Code 1942.
2. The appellant was directed to the tax collector by the clerk of the Board of Supervisors, which body, along with the assessor and tax collector constituted the taxing authorities of the county.
3. The tax collector made an assessment of the minerals and appellant paid his taxes thereunder and holds an official tax receipt evidencing such payment.
Wynn, Hafter, Lake Tindall, for appellee, filed a brief chiefly in reply to the several points made by Green Green, above outlined, and concluded with an adequate summary of appellee's position as follows:
In summarizing the position of the appellee, Hyman, we run headon in the beginning into the position of the appellant McNatt as expressed in the first sentence of the conclusion of his brief. We submit that in no wise did McNatt perform his full duty or even begin to perform the duties and obligations laid upon him under our code. We submit that those duties and obligations were neither burdensome nor onerous, but that they were simply, convenient and effective. In fact, had McNatt exercised his rights under Sections 9770, 9789, 9790 and 9815 of the Code of 1942, this case would never have arisen. To insist that because the Board of Supervisors under Section 9815 did have authority, after the approval of the rolls, to make some changes, they should, without ever having McNatt appear before them or urge upon them his rights or ever having communicated to them his claims, have searched out, investigated and corrected the assessment in the manner desired by McNatt, is to ignore wholly the obligations of McNatt and to place upon the Board of Supervisors an utterly insupportable obligation.
We submit the original assessment was valid; that it carried with it both the surface and the minerals; that the attempt by the tax collector to change that assessment was void and illegal; that the sale by the tax collector under the unchanged assessment was the only valid action that he could have taken and that it passed good title to Hyman's predecessor and thence to Hyman; that there is no estoppel here, legal or equitable, since the action of the tax collector was wholly void and invalid so far as his attempt to assess separately McNatt's minerals was concerned; that there has been no double taxation, but merely an unwarranted and unnecessary and utterly invalid payment by McNatt to the tax collector, which he may, of course, recover, upon proper application, and that McNatt, and not Hyman, should stand charged with McNatt's omissions and failures to act.
It is further submitted that any other course would lead only to confusion, uncertainties and endless litigation. If a prospective tax purchaser is to be charged with the investigation and determination of the facts surrounding and the meaning of every notation made by any tax collector or his clerk or assistant upon the tax collector's roll, which is not a specified public record and not generally available to the public or to any prospective tax payer, certainly such requirement should be specifically made and set out in our statutes. Certainly, at the present time, our statutes do not so require. So to hold and to permit that here attempted to be done by the appellant, would permit the accomplishment of endless frauds, not only upon the state, but upon other tax payers. Suppose of the facts set out in appellant's brief at pages 11 and 12, that these minerals had been worth not the alleged $177.00, but $1,000,000.00; suppose that the land, with its minerals, had been validly assessed after the accomplishment of the investigation and the exercise of the judgment charged to him by the tax assessor at $1,885,000.00; suppose then that the owner of the minerals, refusing, as did McNatt, to appear before the Board of Supervisors for a separation of his mineral interests, should appear before the tax collector or one of his deputies in the usual rush of annual tax collections and, with tongue in cheek, advise the tax collector that he was the owner of the minerals and that the value of the minerals was $885.00. The tax collector is not charged with the valuation of property and he has no facilities for the investigation thereof or its fair determination. The clerk to whom such person appears and makes such statement is, let us assume, in the usual rush of writing tax receipts and trying to serve the long line of tax payers before his window. He accepts this valuation, and, as was done here, notes on his copy of the assessment roll "312 MR" and accepts from the scheming taxpayer a sum of money computed on a valuation of $885.00 for the minerals. Let us further suppose, then, that the land owner, not being in a financial position strong enough to pay on a valuation of $1,000,000.00 and takes his chances on getting his money back or the matter corrected, lets his lands sell for taxes under a changed assessment which will carry, as McNatt here urges, only the surface interests. Is the scheming owner of the minerals to be permitted to profit by such a procedure? We fail to see how he could be prevented from reaping the profits of his operations if the contentions of the appellant here are to be sustained and McNatt permitted to substitute his scheme of assessment for that provided by the code.
Clearly, it would be far better and sounder, more conducive to the protection of the rights of tax paying individuals and for the better protection of the rights of the state, that all properties and all interests therein should pass under the eyes of the tax assessor and the Board of Supervisors, not only when the original assessment is made, but when lands, having been assessed, they are thereafter separated into their various interests or elements.
On a former day we affirmed, by a divided court, the decree of the lower court entered in this cause. The suggestion of error has required a re-examination and reconsideration of the facts and legal questions. Since we have concluded the suggestion of error is well taken it is necessary for us to restate the case and give the reasons which have brought us to the present conclusion.
The precise question for decision is whether, or not, title to the minerals under approximately 136 acres of land located in Washington County was conveyed to Sam Hyman by a tax deed executed by the Chancery Clerk to Hyman April 8, 1946. There had been two tax sales to Hyman — one dated April 3, 1944, and the other dated April 2, 1945, but the tax deed is based alone on the 1944 sale. The time for redemption had expired under the 1943, but not under the 1944, sale. Under both sales the land was advertised as the "NW 1/4 SW 1/4 and all N 1/2 lying W of Clear Creek, S 13, T 19, R 7". The consideration in the tax deed was $111.97. The value of tax purposes was $885.00 in 1943 and $800.00 in 1944. On May 21, 1946, Sam Hyman executed a quitclaim deed to the land to A.M. Hyman, the appellee.
It will be noted both tax sales purported to convey the surface and the minerals — the entire property. But McNatt contends the minerals were not conveyed under the facts of this case. We will state the essential facts, in addition to the foregoing, disclosed by the record.
On January 10, 1942, L.A. Wyatt was the fee owner of all the land — surface and minerals. On that day he executed a warranty deed to McNatt to "all of the oil, gas and other minerals of every kind and character on or under" the described land. The McNatt deed was recorded.
In February 1942, McNatt went to the tax assessor of Washington County and requested the assessor to separately assess to him the minerals. This report was oral and written. He informed the assessor he owned the minerals and he wanted them separately assessed "so I could pay taxes on it, and in case anything happened that the land tax was not paid I would be protected — have my minerals". He had a correct description and estimated a value for tax purposes at one dollar per acre, which was what he gave for it, and which value, it appears, was the uniform value for tax purposes on minerals in Washington County. The assessor refused to separately assess the minerals and declined to accept the writing, giving as a reason, according to the recollection of McNatt and not denied by the assessor, "the Board of Supervisors wouldn't assess the minerals separate from the land."
McNatt then went to the Chancery Clerk and inquired what to do. The Clerk told him to see the Sheriff and Tax Collector. He did that, advising the collector he owned the minerals and wanted them separately assessed. It appears the collector undertook to do that by making a notation on the roll on the line where the land was listed for taxes. Just what the collector did at that time is not entirely clear. Of course, the taxes for 1942 could not be paid in February, 1942, which was the time McNatt went to the assessor, the clerk and the collector. Presumably, the collector entered on that line the letters "M.R." in red pencil, which the deputy collector testifie was understood to mean mineral rights. The roll before us for the year 1942 shows, in addition to the number of the tax receipt issued to the owner of the surface, two other numbers with the letters "M.R." opposite them. These are in the column headed "Number of Tax Receipt 1942". In addition, there appears to the left of that column an unexplained number in a column without a heading. As stated, it is not shown clearly what, if anything, other than "M.R." the Collector placed in that column when McNatt went to him in February, 1942. However, it is shown, without dispute, that McNatt paid to the collector the taxes on the minerals for the years 1942, 1943, 1944 and 1945, and the collector duly issued his tax receipts therefor. The receipts for the years 1942 and 1943 contain the wording "All mineral interest in the following Des. Property" describing the property according to the foregoing surface description, and also saying further "Des. DB 308 P. 485", which is the deed book and page, according to uncontradicted allegations of McNatt's bill, where his mineral deed appeared of record. The tax receipts for the years 1944 and 1945 recite for taxes on "Mineral Interest in following described Property", followed by the surface description. These receipts were entered by the Collector on his roll in proper columns under the respective years, the notation of the receipts being followed by the letters, in red ink, "M.R." In any event, the notations on the Collector's roll for the years 1942 and 1943, and copies of the tax receipts for those years were on file in his office, when the tax sale of April 3, 1944, was made, and those notations, as well as the notations made for the year 1944, were on the roll, and the copy of the tax receipts for payment on the minerals for 1944, as well as the previous tax receipts, were on file in the Collector's office, when the 1945 tax sale was made. It is thus seen that when both sales were made the taxes on the minerals for the years for which the sales were made, as well as the previous year of 1942, had been paid, and the tax records and receipts disclosed such payments and the deed records disclosed the separate ownership of the minerals in McNatt. Slight inquiry or investigation by the tax purchaser would have disclosed those facts.
The roll in the hands of the Collector is his authority to make sales and conveyances of lands for nonpayment of taxes thereon. Sections 9805 and 9921, Code 1942. Yet, in this case, the roll itself, when these sales were made, showed not only the assessment made by the collector but the actual payment of the tax on the minerals to the collector himself. Section 9901, Code 1942.
(Hn 1) The tax collector "shall assess and collect taxes on land liable to taxation left unassessed by the assessor . . ." Section 9901, Code 1942. The manner of making the assessment is not prescribed by the statute. The collector undertook to assess these minerals. He had the authority to do so and the method adopted does not render his act invalid. But it is said no proof is made that the supervisors adopted a minute approving the collector's assessment. Section 9796, Code 1942, provides "Assessments must be approved by an order of the board of supervisors entered on the minutes; but the failure to make and enter such order shall not vitiate the assessment if it shall appear that the assessment was made according to law". There is no definite proof that the supervisors did, or did not, enter an order approving the assessment, but appellant offered to prove that the method here adopted was the usual method for such assessments in Washington County. The lower court sustained objection to that evidence. Therefore, apparently the supervisors did not enter an order approving the assessment and the method here used was the general method adopted in that County as to the assessment of minerals. Section 9901, Code 1942, not only confers authority upon and makes it the duty of the collector to assess and collect taxes on property unassessed by the assessor, but it also makes it the duty of the collector to ". . . report to the board of supervisors on making each monthly settlement, under oath, additional assessments made by him, a copy of which the clerk shall transmit to the Auditor within ten days, and he shall charge the amount of the State tax thereon to the collector . . ." (Hn 2) Therefore, we have the situation of the collector making an assessment of land left unassessed by the assessor, which the collector had the authority to do, and we may properly presume he did his duty and reported each month to the supervisors the additional assessments. The taxes collected on such assessments were paid into the respective county and state treasuries. That had been done in this case two years before the first and three years before the second tax sale involved herein. Under these circumstances we think the supervisors had approved the mineral assessments under the facts of this case.
We have set out above, and now again call attention to, the efforts of McNatt to have the minerals assessed to himself separately from the surface. (Hn 3) It is argued that even so he should have gone before the supervisors and insisted that the board enter an order approving the assessment made by the collector. This record discloses that his appearance before the board for that purpose would have been a vain and useless thing. In the first place, it is apparent from the record the method here used was the general method adopted throughout Washington County in assessing minerals. The assessor testified that several hundred came to him and wanted to pay on minerals. He refused to assess any of them. It is undisputed the supervisors would not assess the minerals separately. Therefore, as stated, had McNatt appeared before the Board of Supervisors and insisted that the minerals be separately assessed the request would have been vain and useless. In the second place, we do not think that McNatt, after doing what he did in this case, with the information before him, and after the assessment had been made by the assessor, was required to institute mandamus proceedings against the supervisors in an effort to compel them to enter an order approving the assessment as made by the collector. That would would be placing upon the taxpayer too great a burden. It is the duty of the taxing officials to assess property for taxes. McNatt did all that was required of him. This Court held in Brannan v. Lyon, 86 Miss. 401, 38 So. 609, that where a taxpayer tendered the amount of the tax owing on his property and the collector erroneously stated to him the taxes had been paid, a sale of the property for non-payment of taxes was void. We have also held that where the clerk of the board of supervisors stated to the owner there had been no tax sale of the property, whereas, in fact, there had been a sale, the offer of the owner to redeem from the sale although he did not actually tender the money, deprived the clerk of the power to convey to the tax purchaser a title to the property. The opinion states "The law does not require one to do a vain and useless thing". McLain v. Meletio et al., 166 Miss. 1, 147 So. 878, 879. Again, where the owner assumed his property had sold for taxes, and offered to pay the clerk the redemption money, but the clerk erroneously told the owner the taxes had been paid and no taxes were owing and due, this deprived the clerk of the power to subsequently convey to the tax purchaser a title to the property although the assessment was regular and valid. Kelly v. Coker, 197 Miss. 131, 19 So.2d 519; Beauchamp v. McLauchlin, 200 Miss. 83, 25 So.2d 771. The case at bar, in our opinion, is stronger for the taxpayer than the foregoing cases, for the reasons (1) the tax roll in the hands of the collector showed the separate assessment, and (2) that roll, as well as the copies of the tax receipts, disclosed the fact that the taxes on the minerals for two years before the first sale had actually been paid.
(Hn 4) Now, a tax purchaser is not an innocent purchaser for value. He takes the title subject to all its infirmities. Roebuck v. Bailey, 176 Miss. 234, 166 So. 358; 51 Am. Jur., Taxation, Sec. 1061. In Perret v. Borries, 78 Miss. 934, 30 So. 59, the owner paid his taxes but the collector misdescribed the property and it sold for taxes. The assessment roll and the advertisement showed the taxes had not been paid, and the assessment and non-payment appeared perfectly regular, yet this Court held the tax purchaser got no title. Suppose, in this case, the minerals had sold to the State. Surely the Court would have held, under the state of this record and the all-important fact that the county and state had been paid the tax, that the State would not have gotten title to the property. The tax purchaser is in no better position than the State would have been.
We, therefore, hold under the combination of circumstances existing in this case that appellee Hyman, as against appellant, got no title to the minerals. His title to the surface is not involved. McNatt's bill should have been sustained, and the bill of Hyman should have been dismissed.
Suggestion of error sustained, the cause is reversed and judgment here for appellant.
McGehee, J., dissents.
DISSENTING OPINION.
Despite the conclusions of the majority of the Court whose opinion and personnel have changed since the rendition of the original opinion I find myself unconvinced that our former view were at variance with the law. Much stress has been put upon the good intentions and the continued efforts of the appellant to have his minerals properly assessed. If they were not so assessed, the unsuccessful efforts of the appellant should create only a measure of sympathy but not of duty. With deference, I must confess that I find the majority opinion an effort to save the appellant by the invocation of unique presumptions and certain assumptions which are found necessary to support them. Although the Court has stated, "we think the supervisors had approved the mineral assessments under the facts of this case", it is clear that this is not a conclusion based upon the record but an assumption which impliedly concedes the necessity for such approval. Appellant never made application to the Board itself. The inference that such application would have been vain is no doubt logical argument, but the fact remains that appellant did not make such application, and the attitude of the Board is inferred solely from mere hearsay statements of the assessor.
I am of the opinion that the purchaser at the tax sale purchased that which had been assessed which was the entire interest in the land. Stern v. Parker, 200 Miss. 27, 25 So.2d 787, 27 So.2d 402. It had therefore not escaped taxation and had not been "left unassessed". The man in the street would perhaps come to the assistance of the appellant and find comfort in any solution regardless of its foundation, which would reward appellant for efforts which the law should find to be abortive, but we are not men in the street, we must stand upon the law as it is written. The action of the sheriff and tax collector was well meant, but not well founded. He was without authority to assess these minerals as property which had escaped taxation or assessment and his effort so to do has not been authenticated by any showing of a report thereof to the Board of Supervisors. The assessor acted without authority in refusing the demand of appellant. The tax collector acted equally without authority in his informal amendment of his roll.
ADDENDA
The following eight cases were intended to be included in Vol. 203, but the manuscript material furnished for that volume was in excess of what would go therein to the extent of the eight cases and they were set into type for Vol. 204, and so done before Mar. 1st, 1949, the effective date of the new act, Chap. 416, Laws 1948, and before the commencement of the term of the present reporter.
Inasmuch as the manuscript for the eight cases did not comply with the new act, these cases could not be included in the present volume without a permit from the judges of the Supreme Court so allowing. On April 12, 1949, the judges issued a permit in writing that the eight cases may be included "as the last cases in the current volume preceded by a short memorandum as addenda that they have been allowed by a directive from the Supreme Court".