Gamble v. Witty

1. Tax Salks. Abatement act of 1875 construed. Section 1 of an act approved March 1, 1875, provided “for the abatement of all’ taxes which have accrued prior to the taxes of 1874, upon all lands now claimed as forfeited to, or purchased by, the state;” section 5 provided -‘that all lands heretofore held or claimed for taxes by the state are declared to be liable for the taxes of 1874 alone, and that the tax-collectors shall proceed to collect said taxes for the fiscal year of 1874; ” section 9 provided that, if the taxes are not. paid on said lands by April 1, 1875, the lands shall then become delinquent,, and shall be sold on the second Monday of May, 1875, for such taxes. Held, that this act does not authorize the sale of lands held by the state, on -which the taxes for all years previous to 1874 had been paid, but only applies to-lands delinquent for taxes prior to 1874. 2. Same. Valid in 1875. Under the acts of April 17, 1873, and December 22, 1874, in relation to revenue,, a sale of lands on the first Monday of February, 1875, for the delinquent taxes-of 1874, was legal. 3. Tax Title. How vested in the state. A list of lands sold to the state for delinquent taxes of the year 1874, duly certified and filed with the circuit clerk of the proper county, vested title in the* state, whether the same was recorded by the clerk or not. 4. Same. Evidence. Copy of list of lands. A certified copy of a list of lands sold to the state for taxes, and filed with the-auditor of public accounts, is admissible in evidence in all cases where the-original would be. 5. Taxes. Power of legislature to limit. Taxes levied by the Boards of Supervisors for building and repairing jails and bridges are protected by section 16 of article 12 of the state Constitution, and are not to be computed in making up the aggregate amount of the levy of' taxes to which such boards are limited by the Legislature. 6. Same. When to be levied. Statute must be pursued. Section 1372 of the Code of 1871 requires the Boards of Supervisors to meet o® the first Monday of July to levy the county taxes for the fiscal year; and section 1373 provides for a special meeting for that purpose, if any of said boards should fail to meet on the first Monday in July. These boards must., conform to the statute as to the time of levying taxes, and if any such board, after having met at the regular term and levied certain taxes, should have a>. special meeting and levy other taxes, the levy made at the special meeting; will be illegal and void, because levied at a time not authorized by law. 7. Tax Sale. Assessment partly illegal. Section 8 of article IS of the constitution construed. A sale of land for taxes a part of which are levied or assessed legally, and a-, part illegally, is void. And this rule is not changed by section 8 of article 12; of the state Constitution, which provides that “the courts shall apply the-same liberal principles in favor of such [tax] titles as in sales by execution.”' This provision was intended to prevent the mere irregularities which do not; avoid execution sales from being held to avoid sales for taxes, and not to cure-illegality in the levy or assessment — these being the fundamental conditions-on which the right to subject property to sale for the non-payment of taxes-arises. ■"8. Same. State tax legal, and county tax illegal. Where land is sold for taxes, although the state tax may be legally levied and assessed, if any part of the tax for county purposes be illegally levied or assessed, and the sale be for the whole tax, it will be void, because of the illegal levy or assessment of a part of the tax.

Error to the Circuit Court of Montgomery County. Hon. William Coti-iran, Judge. The defendants in error instituted an action of unlawful de- ■ tainer, to recover of the plaintiffs in error the possession of a certain tract of land. On the trial in the Circuit Court the plaintiffs below introduced in evidence a deed from the state, •executed by the auditor on April 12, 1877, purporting to convey to them the title to the land in controversy. They also introduced in evidence a list of the lands sold to the state by the tax-collector of Montgomery County for the taxes of 1874, which the auditor of public accounts had certified to be a correct copy of the original list on file in his office. This evidence was objected to by the defendants, and the objection •overruled. The defendants proved that the Board of Supervisors, at the regular meeting in July, 1874, levied taxes for county purposes as follows : For general purposes, forty-five per cent on the ■.state tax; for pauper fund, twelve per cent on the state tax; for bridge fund, eight per cent on the state tax; for indebtedness to 'Carroll and Choctaw Counties, ten per cent on the state tax; for deficit in teachers’ fund, fifteen per cent on the state tax; for -school-house fund, eighteen per cent on the state tax — the whole aggregating 108 per cent on the state tax. It was also proven ■that the list of lands sold to the state for the taxes of 1874 was never recorded in the circuit clerk’s office. The defendants further proved that the Board of Supervisors, at a special meeting in September, 1874, levied a tax of eighteen per cent on the state tax to build a jail for the county. The proof showed that .the land sued for was sold to the state, on the first Mon•day of February, 1875, for all of the taxes levied at the regular meeting in July and the special meeting in September, for-the year 1874 ; and that the same was again sold on May 10, 1875, under an amendment to the Abatement Act,'approved on March 1, 1875. The judgment was for the plaintiffs below,, and the defendants sued out a writ of error. 1. Did the sheriff have any authority to sell the lands in- ■ volved in this suit on February 1, 1875 ? and, if he had the authority to sell, was that the day appointed by law? The act of' 1872 (Pamphlet Acts, 1) changed the mode of reaching lands delinquent for taxes, and required the sheriff to return lists of' all such lands to the office of the clerk of the Board of Supervisors, on' the first Monday in December of each year. On receipt of this list, citations were issued, publication made, and. on the return-day, if no valid defense was made, the board condemned the lands to be sold. The act prescribes the-; mode in which delinquent lands thus condemned shall be sold, and, in default of bidders, struck off to the state. In 1875 (Acts, 86-88) the act of 1872 was amended, and the-5th section of the amendatory law required the sheriff to make sale of all delinquent lands in the manner provided by law, and legalized all sales made in accordance with its. provisions. Did this act repeal the act of 1872, regulating proceedings against delinquent lands, or did it merely refer to the sale of the lands when condemned by the board in the manner provided by the act of 1872, and the amendatory act of 1873? The act of 1872 contained no provision as to cases where citation had-not been served, or the proper publication made. As to these the mode of disposition, was not pointed out; the act of 1873 came in to the rescue, and authorized proceedings anew, and the sale of lands condemned in the manner “provided bylaw.” It was not intended to change the whole scheme inaugurated by the act ot 1872, and this is made manifest by the act to harmonize the revenue law, passed March 11, 1874. Acts, 5. The law was, however, again changed December 22, 1874,. .and the law of the Code restored, except that the advertisement of sale was to be made immediately after January 1st of each j-ear, and the sale was to be made on the first Monday of February, and the list of lands was to be returned to the circuit clerk. But this statute, by its terms, refers to lands “that may hereafter become delinquent for taxes,” and not to lands which, under prior laws, had already for a month been delinquent, and were being proceeded against for condemnation. While the act of 1874, above referred to, repealed the section of the act of 1872 authorizing citation, etc., the amendatory .act of 1873 was not even referred to. As to all lands delin■quent prior to December 22, 1874, and against which proceédings had been instituted by the board, there could be no sale, because the authority of the board to condemn was gone, and the lands were not embraced within the letter of the act of December 22, 1874. This is, doubtless, a casus omissus, but the conclusion reached seems to be logical, if the object be not to favor repeals by implication, and to harmonize all statutes upon one subject. 2. The sale of May 10, 1875, was wholly uriauthorized. 'The tax receipt exhibited by plaintiff in error on the trial of this case showed that the taxes for the year 1873 had been paid, and the Abatement Act of 1875 did not apply. The 1st section of that act provides for the abatement of all taxes which have accrued prior to the taxes of the fiscal year 1874, upon all lands now claimed as forfeited to, or purchased by, the state ■ of Mississippi, and was amendatory of the act of 1874, which abated taxés accrued prior to the fiscal year 1866, “ upon all lands forfeited to, or purchased by, the state for the non-payment of taxes prior to the year 1866. Acts 1874, p. 49 ; Acts 1875, p. 11. The lands intended to be covered by these acts were those forfeited or purchased for non-payment of taxes prior to 1866. All such lands not disposed of under the act of 1874, •and still claimed by the state as being held for taxes, were, by the act of 1874, relieved of the payment of all taxes back of the year 1874, and the expression “now claimed as forfeited to, or purchased by, the state of Mississippi for taxes ” refers to the lands which, held for non-payment of taxes prior to 1866, were struck off again to the state under the operation of the first Abatement Act. At all events, no one could contend that the act was intended to apply to lands which had not, in fact, been forfeited to, or purchased by, the state, nor to lands upon which the taxes for the year 1874 were alone due and payable. The Abatement Act was intended to apply to cases in which taxes for years preceding 1874 were due, and could •alone operate upon such cases. 3. The sale was void because the county taxes levied were largely in excess of what the law authorized. A casual inspection of the record will demonstrate this assertion. Besides, some of them were levied at a time not warranted by law. If the levy was excessive, the sale is void; and the fact that part of the taxes for which the land was sold was legal cannot impart vitality to the tax title. MeGehee v. Martin, 53 Miss. •519 ; Beard v. Lee County, 50 Miss. 543; Dogan v. Griffin, •50 Miss. 782 ; Tuttle v. Everett, 51 Miss. 27 ; 53 Miss. 295 ; 4 Band, $?4; 8 Blackf. 335 ; 6 N. H. 182 ; 8 Yt. 419 ; 12 Conn. 437 ; Board of Supervisors v. Klein, 51 Miss. 816. If it be true that the assessment of taxes for which the land was sold was partly illegal, that does not invalidate the sale. When the assessment-roll was approved by the Board •of Supervisors, after due notice to those interested, and an ■opportunity offered them to have mistakes therein corrected, it became as a judgment, with all of the binding and concluisive character of a judgment of a court of law. Virden v. Bowers, ante, 1. A defendant in a judgment cannot defeat the sale of his land under execution, on the ground that the judgment is for an amount a part of which he did not legally owe. It is not denied by the plaintiffs in error that the state tax for which the land was sold was legally levied and assessed, but it is claimed that the levjr and assessment for county purposes was partly illegal. This question is presented: Can a. county, by an illegal levy of taxes, deprive the state of her right' to sell lands delinquent for a tax legally levied and assessed ? Should the court answer this question in the affirmative, it would concede to the Boards of Supervisors the power to defeat the collection of the state taxes, and to annul the revenue laws altogether, so far as they are beneficial to the state. The whole scheme for the maintenance and perpetuation of the state government would be thus placed at the mercy of the Boards of Supervisors, and left dependent upon their wisdom or indiscretion, friendliness or hostility, intelligence or ignorance. If the answer is to be in the negative, then the sale in this case was certainly valid. In Virden v. Bowers, supra, it is held that section 8 of article 12 of the state Constitution is imperative that the courts shall regard a title by tax deed with the same favor and indulgence as a title by sheriff’s deed upon a sale under execution. And the principle is well settled that where the# is a sale under several executions, only one of which is valid, such sale is good, and is not affected by the illegal executions. Banks v. JEvans, 10 Smed. & M. 35 ; Kane v. Maelcin, 9 Smed. & M. 387. This principle must be applied to tax sales where a part of the tax is illegal. The case of Bogan v. Griffin, 51 Miss. 782, in which it was decided that a sale of realty for taxes partly illegal was void, was in accordance with the rule which prevailed prior to the adoption of the present sítate Constitution. The sale in that case was in 1862. But section 8 of article 12 of the Constitution of 1869 changed the former rule, and required the courts to apply the same liberal rules of construction to tax sales that are applied in favor of sales under executions. If it be held that the levy of taxes by the Board of Supervisors, in September, 1874, was at a time unauthorized by law, I insist that the levy is no part of the ‘ ‘ assessment ’ ’ which is field, iii Virclen v. Boivers, to be a prerequisite to tfie power of sale for taxes. Thougfi, if it was a part of tfie assessment of county taxes, it could not affect tfie validity of tfie sale for state taxes.