Opinion
No. 31416.
November 12, 1934. Suggestion of Error Overruled December 10, 1934.
TAXATION.
Where no sale of land delinquent for 1929 taxes was made on first Monday of April, 1930, which was regular time appointed by law, order of board of supervisors authorizing sheriff and tax collector to sell all lands in county delinquent for 1929 taxes on first Monday on May held to sufficiently describe lands to be sold (Code 1930, section 3252).
APPEAL from the Chancery Court of Lamar County.
John A. Yeager, of Lumberton, for appellant.
In the absence of evidence to the contrary, the courts are bound to presume that public officers have not culpably neglected, but properly discharged, their official duty; and that their acts are in all respects regular. Every reasonable presumption will be indulged in favor of sustaining the ministerial acts of officers.
10 R.C.L. 880; 2 Stork Ev. 684; Douglass v. Mitchell's Ex., 35 Pa. 440; Black's Law Dict. 3d, p. 1410; 3 Words and Phrases, 4 Series, p. 157; Jones on Evidence, Pocket Ed. 1912, secs. 45, 46; Cooper v. Grandberry, 33 Miss. 117.
The cross-bill of complaint, being a part of the record, will receive judicial notice, as evidence in the case, at the hands of the court.
Griffith Mississippi Chancery Practice, sec. 572.
The material facts therein properly pleaded are admitted to be true by force of the demurrer.
"Prima facie" evidence means sufficient evidence upon which a party will be entitled to recover if his opponent produces no further testimony.
Eckman Chemical Co. v. Chicago N.W. Ry. Co., 185 N.W. 444, 446, 107 Neb. 268; 6 Words Phrases (3rd series), p. 88.
The sheriff and tax collector having failed to advertise, and sell the lands on April 7, 1930, as required by section 3249, Code of 1930, thereafter, on April 8, 1930, the board of supervisors passed and spread upon its minutes the order hereinabove set out, directing the delinquent land tax sale to be held the first Monday (5th) in May, 1930, as authorized by section 3252, Code of 1930.
The case at bar is controlled by the laws in effect May 5, 1930, the date of sale.
Price v. Harley, 107 So. 663.
Sections 3249 and 3252 are in pari materia and must be construed together in applying the legal scheme of tax sales and, therefore, section 1578 (prima facie statute in support of the validity of tax deeds) is equally applicable to sales made under either section.
Wm. H. Maynard, Assistant Attorney-General, for the state of Mississippi, amicus curiae.
Section 8297 of the 1927 Code does not direct that certain lands be condemned by the board of supervisors for sale as contended by appellee, but merely provides that the board shall set the date for sale of lands already liable for sale. This was an important provision of law for it took out of the discretion of the sheriff and tax collector the fixing of his own date for sale.
Appellee's contention that the land ordered by the board to be sold on May 5, 1930, should have been individually and separately described would reduce the law to an absurdity.
That the board had the power to order all lands delinquent for taxes for the previous year to be sold at a date subsequent to the date set by law is evident, both from an examination of section 8297 of the 1927 Code and the language of the court in its opinion in the case of Brougher v. Conley, 62 Miss. 358.
Although we are unable to find a case directly in point on the proposition of our case, there are two cases in Mississippi which have considered the type of order used by the board of Lamar county. Although the court in both of these cases held that the order was entered at the wrong time there was no intimation that said orders were insufficient as to the description of land to be sold.
Brougher v. Conley, 62 Miss. 358; Clarke v. Frank, 64 Miss. 827.
N. Batson, of Woodville, for appellee.
The statute fixes the lien, the assessment, supposed to be made with judgment and discretion as to each piece or parcel of land fixes the amount of the lien against particular property; the statute, section 3249, is the judgment and execution or fieri facias in the hands of the collector, returnable on the first Monday of April. After that date he has no authority to foreclose the lien until so authorized by the board of supervisors under section 3252. And it is submitted that he should make full report to the board describing each piece of land, the amount of taxes, damages, etc., and that the board sitting as a court should examine such report, scrutinizing each parcel or piece of land described with judgment and discretion, and if found correct, order the sale of each by exact or known descriptions. This is the judgment of the board on which the order to sell is based.
Woods v. Morath, 91 So. 131.
The judgment of the board condemns certain lands to be sold, which lands cannot be ascertained without an order spread upon their minutes describing same, any more than lands may be condemned in other proceedings without describing them.
The land assessment roll in the hands of the tax collector is the latter's writ of execution, so to speak, for the enforcement of such judgment. Such execution expired, was returnable, so to speak, with sale day fixed by the statute, that is, first Monday of April, and afterwards the tax collector has no authority under that writ, and cannot foreclose the lien of the assessment without another writ or order, and the other statute provides what court may issue such order.
Wood v. Morath, 91 So. 131.
Statutory requirement that the tax collector shall make and return a list of the lands on which the taxes have not been paid is imperative.
37 Cyc., Taxation, p. 1293E.
Argued orally by John A. Yeager, for appellant, and by Wm. H. Maynard, for appellee.
Appellee filed a bill in the chancery court of Lamar county seeking to cancel two tax deeds issued to the appellant, as the purchaser at a tax sale held on May 5, 1930, for taxes delinquent for the year 1929. The bill attacked the validity of these tax deeds on several grounds, one of which was that the order of the board of supervisors authorizing and directing the delinquent tax sale on the first Monday of May, 1930, was void for uncertainty as to the particular lands to be sold. After a demurrer to the bill was overruled, the appellant answered denying the averments of the bill, and made his answer a cross-bill, alleging that the sheriff and tax collector wholly failed to sell any lands delinquent for taxes on the first Monday of April, 1930; that thereafter the board of supervisors of Lamar county passed an order directing that all lands delinquent for taxes be sold on the first Monday of May, 1930; that, acting under the authority of this order, the tax collector properly advertised the lands delinquent for 1929 taxes and sold the same on the first Monday of May, 1930; and that at such sale the cross-complainant bought the land in question, for which tax deeds were delivered to him after the expiration of the statutory period for redemption. The cross-bill prayed for the cancellation of all claims of the cross-defendant to the land and for the confirmation of cross-complainant's tax titles thereto. From a decree sustaining a demurrer to this cross-bill, this appeal was prosecuted.
The order of the board of supervisors authorizing and directing the sale of lands delinquent for the 1929 taxes reads as follows: "It is hereby ordered by the board of supervisors of Lamar county in regular session that the sheriff and tax collector of said Lamar county, state of Mississippi, be and he is hereby authorized, empowered and directed to sell at public auction all real property in aid county delinquent for the taxes for the year 1929, said sale by said sheriff and tax collector to be made on the 1st Monday in May, 1930, at the east front door of the court house in the town of Purvis, Mississippi, and if necessary to continue from day to day, not exceeding three days until all of said property is sold. It is further ordered that notice of delinquent real property for 1929 taxes be given by publication in the Booster a weekly newspaper published in the town of Purvis, Mississippi, for a time and in a manner as by law provided. So ordered this the 8th day of April, 1930."
The contention of appellee, which was sustained in the court below, is that this order of the board of supervisors is void, for the reason that it fails to definitely describe and specify each parcel of land to be sold, and the only question presented for decision is whether or not the order was sufficient to empower the tax collector to make a valid sale of such lands on the date fixed therein.
The admitted facts are that no sale of lands delinquent for 1929 taxes was made at the regular time appointed by law for the sale of delinquent tax lands, which was the first Monday of April, 1930. After that date had passed, in pursuance of section 2935, Code of 1906, now section 3252, Code of 1930, the above-quoted order of the board of supervisors was passed, and the sale was advertised and conducted in accordance with "the provisions of law applicable to such sales at the time appointed by law."
Section 2935, Code of 1906 (section 3252, Code of 1930), provides, in part, as follows: "If from any cause a sale of any land for taxes which is liable to such sale shall not be made at the time appointed by law for such sale, it may be sold thereafter, in the same or a subsequent year, at any time designated therefor by order of the board of supervisors. Notice of a sale so ordered shall be given by advertising it in the manner prescribed by law for the sale of land for taxes; and the same shall be made at the same place and subject to all the provisions of law applicable to such sales at the time appointed by law."
The order of the board of supervisors authorized, empowered, and directed the tax collector to sell all real property in the county then delinquent for taxes for the year 1929. There was in this order no uncertainty as to the lands directed to be sold. It required the sale of "all lands in the county then delinquent for taxes." The language could not be more comprehensive, and there is no apparent reason for the order to have set forth a more particular description of the lands to be sold. By advertisement, in the manner prescribed by law, the owner of each parcel of delinquent land was duly notified of the time and place of such sale, and in our opinion sales made in pursuance of the order were valid. Consequently, the demurrer to the cross-bill should have been overruled.
Reversed and remanded.