Opinion
No. 40634.
January 20, 1958.
1. Taxation — equalization of assessment rolls — statutory requirement for president of board of supervisors to sign minutes before final adjournment — mandatory.
The statutory requirement for president of board of supervisors to sign minutes relating to equalization of assessment rolls, before final adjournment of the term, is mandatory. Sec. 2886, Code 1942.
2. Taxation — equalization of assessment rolls — July meeting of board of supervisors could not be ratified by signing or approving July minutes at August meeting.
Equalization of assessment rolls, required to be transacted only at July meeting of board of supervisors, could not be ratified by signing or approving July minutes at August meeting. Sec. 2886, Code 1942.
3. Tax sales — assessment and sale void where July minutes equalizing assessment rolls were not approved and signed by president of board of supervisors prior to adjournment of term.
Where minutes of board of supervisors at July term, during which board equalized assessment rolls, were not approved and signed by president of board but adjourning minutes were signed by Chancery Clerk, the assessment and tax sale based thereon were void. Sec. 2886, Code 1942.
4. Minerals — adverse possession of surface under color of title gives no adverse possessory title of antecedently separated minerals.
Possession of surface under color of title gives no adverse possessory title of antecedently separated minerals, in absence of actual possession of the minerals by drilling wells and taking possession of them.
5. Res judicata — judgment not res judicata of issues in later case.
Judgment in another case was not res judicata, where two of the parties were different and the former case did not involve question of validity of tax sale, as was involved in later case.
Headnotes as approved by Ethridge, J.
APPEAL from the Chancery Court of Smith County; NEVILLE PATTERSON, Chancellor.
W.W. Dent, Collins, for appellants.
I. The Court erred in declaring the tax sale of September 17, 1933 void.
II. The Court erred in holding that the defects, irregularities and illegalities, if any, in said tax sale were not cured in the Mississippi Code of 1942.
III. The Court erred in holding that Wilson's entry on the land was not adverse to the minerals by reason of Section 717 of the Mississippi Code of 1942.
IV. The Court erred in holding that Wilson did not acquire title by adverse possession under his tax title.
V. The Court erred in not finding the appellant Wilson to be the owner of both the surface and minerals.
Collation of authorities: Anderson v. Shellhammer, 248 F.2d 46; Beard v. Stanley, 205 Miss. 723, 39 So.2d 317; Davis v. Grice, 141 Miss. 412, 106 So. 631; Jones v. Russell, 187 Miss. 827, 194 So. 290; Parks v. Simmons (Miss.), 52 So.2d 14; Pettis v. Brown, 203 Miss. 292, 33 So.2d 809; Stern v. Parker, 200 Miss. 27, 25 So.2d 787, 27 So.2d 402; Wilson v. Martin, 204 Miss. 196, 37 So.2d 254; Secs. 717, 2877, 7986, 9770, 9802, Code 1942; 2 C.J.S. 642; 58 C.J.S. 22; 6 Oil and Gas Reporter 97.
Luther D. Pittman, Raleigh; Martin W. Gerald, Jackson, for appellee.
I. The bill of complaint filed herein is insufficient to authorize the granting of any relief to appellant.
A. Appellants must recover on the strength of their own title. Goff v. Avent, 122 Miss. 86, 84 So. 134; Griffith's Miss. Chancery Practice (2d ed.), Secs. 211, 218.
B. A copy of the tax sale list was not attached to the bill of complaint, nor were the steps necessary to show a valid tax sale alleged in the bill. Campbell v. Wilson, 194 Miss. 746, 13 So.2d 624; Griffith's Miss. Chancery Practice (2d ed.), Sec. 220.
II. No earlier litigation is res adjudicata of the issues involved in this case. Bullock v. Green, 224 Miss. 278, 80 So.2d 37; Wilson v. Martin, 204 Miss. 196, 37 So.2d 254; 50 C.J.S., Judgments, Sec. 605; Griffith's Miss. Chancery Practice (2d ed.) Sec. 331.
III. The September 18, 1933 tax sale was based upon a void assessment.
A. The July 1932 Minutes of the Board of Supervisors of Smith County were not signed by the President. Gardner v. Price, 197 Miss. 831, 21 So.2d 1; Merchants Manufacturing Bank v. State, 200 Miss. 291, 25 So.2d 585; Parks v. Simmons (Miss.), 52 So.2d 14; Secs. 211, 3162, Code 1930; Secs. 2286, 2886, 9786, Code of 1942.
B. The 1932 assessment for taxation in Smith County was void for the further reason that proper notice was not given prior to the special meeting at which an attempt was made to finally approve the tax rolls. Gordon v. Smith, 154 Miss. 787, 122 So. 762; Henderson Molphus Co. v. Gammill, 149 Miss. 576, 115 So. 716; McKenzie v. Smith, 219 Miss. 852, 70 So.2d 3; Pettibone v. Wells, 181 Miss. 425, 179 So. 336; Sharp v. Smith, 180 Miss. 887, 178 So. 595; Sec. 3178, Code 1930; Sec. 9802, Code 1942.
IV. Possession of the surface is not adverse to a severed mineral estate. E.L. Bruce Co. v. Smallwood, 188 Miss. 771, 196 So. 227; Grant v. Montgomery, 193 Miss. 175, 5 So.2d 491; Leavenworth v. Claughton, 197 Miss. 606, 19 So.2d 815, 20 So.2d 821; Mathieu v. Crosby Lumber Mfg. Co., 210 Miss. 484, 49 So.2d 894; White v. Merchants Planters Bank, 229 Miss. 35, 90 So.2d 11; Sec. 717, Code 1942.
Appellants R.W. Wilson and W.W. Dent brought this suit in the Chancery Court of Smith County against G.R. Eckles, Earl R. Wilson and the California Company, seeking to remove clouds asserted by appellees to the minerals in and under certain lands in Smith County. The defendants filed answers and cross bills praying cancellation of complainants' claims to the minerals. The final decree dismissed the bill, and granted appellees relief on their cross bills.
Appellants claim under a tax sale dated September 18, 1933, made by the tax collector of Smith County to the State for delinquent 1932 taxes. At the time of the tax sale Robert Ralston was the owner of the land and minerals, having acquired the same on July 20, 1932.
On July 31, 1941, Ralston conveyed the surface of the land to W.B. Crumpton, reserving and excepting to himself all oil, gas and other minerals. Also in 1941 Ralston conveyed the minerals to C.H. Loper, who in 1950 conveyed the same to appellee Eckles.
Appellants' chain of title, stemming from the 1933 tax sale to the State, is further evidenced by a forfeited tax land patent from the State to R.W. Wilson on September 17, 1943. In 1951 R.W. Wilson conveyed the surface of the land to W.N. Walters, reserving all of the minerals, and subsequently R.W. Wilson conveyed to appellant W.W. Dent a 5/46ths mineral interest, or 5 mineral acres.
(Hn 1) Hence the controversy centers around the validity of the tax sale to the State of September 18, 1933. It is undisputed that the minutes of the board of supervisors, at the July 1932 term, during which the board equalized the assessment rolls, were not approved and signed by the president of the board, as required by Code of 1942, Section 2886. The adjourning minutes were signed by the chancery clerk instead. It is well established that the statutory requirement for the president of the board to sign the minutes before final adjournment of the term is mandatory, where the board is equalizing assessment rolls, which can only be initiated at the July meeting: (Hn 2) and that such tax matters required by law to be transacted only at the July meeting could not be ratified by signing or approving the July minutes at the August meeting. Gardner v. Price, 197 Miss. 831, 21 So.2d 1 (1945); Merchants and Manufacturers Bank v. State, 200 Miss. 291, 25 So.2d 585 (1946); Parks v. Simmons, 52 So.2d 14 (Miss. 1951). (Hn 3) For that reason the assessment of these lands for 1932, on which the 1933 tax sale was based, was void, and therefore the 1933 tax sale to the State was invalid.
(Hn 4) In 1941 Ralston conveyed the surface of the land to Crumpton, reserving and excepting in himself the mineral estate. Since that date the minerals have remained severed and separate from the surface estate. Appellant R.W. Wilson contends that adverse possession of the surface by himself and his successors in title since 1948 vested title to the minerals as well as the surface in him and his successors by such adverse possession, under Code of 1942, Section 717. However, possession of the surface under color of title gives no adverse possessory title of antecedently separated minerals, in the absence of actual possession of the minerals by drilling wells and taking possession of them, which did not occur in this case. White v. Merchants Planters Bank, 90 So.2d 11 (Miss. 1956).
(Hn 5) The case of Wilson v. Martin, 204 Miss. 196, 37 So.2d 254 (1948), is not res judicata of the issues in this case. There is no identity in the cause of action, or in the parties, between the earlier case and the present one. Appellees Eckles and the California Company were not parties to the earlier suit, and it did not involve the question of validity of the tax sale.
Affirmed.
Roberds, P.J., and Lee, Holmes and Arrington, JJ., concur.