Opinion
No. 35779.
February 12, 1945.
TAXATION.
Where tax sale could have been legally held at door of temporary courthouse established by sheriff and board of supervisors after old courthouse burned, tax sale held at ruins of old courthouse which was not visible from temporary courthouse was void (Code 1942, secs. 2895, 9923).
APPEAL from the chancery court of Jasper county, HON. GEO. B. NEVILLE, Chancellor.
Harold Cox and Lamar F. Easterling, both of Jackson, for appellant, Roy P. Collins.
The court erred in holding that a complete roll was not filed and approved for the collection of 1931 ad valorem taxes in the first district of Jasper County.
Turner v. Cochran, 89 Miss. 206, 42 So. 876; Yazoo Delta Lumber Co. v. Eastland, 104 Miss. 553, 61 So. 597; Walton v. Gregory Funeral Home, 170 Miss. 129, 154 So. 717; Newman v. Taylor, 69 Miss. 670, 13 So. 831; Stewart v. Brooks, 62 Miss. 492; Horton v. King, 113 Miss. 60, 73 So. 871; Bullock v. Board of Supervisors of Covington County (Miss.), 77 So. 662; Pearl River County v. Lacey Lumber Co., 124 Miss. 85, 86 So. 755; Code of 1930, Secs. 3161, 3173; Constitution of 1890, Sec. 112; Laws of 1906, Ch. 168, Sec. 12.
The meeting of the board of supervisors at Paulding on the second Monday of August, 1930, was a legal meeting and the order approving the 1930-1931 rolls thereat was valid.
Rawlings v. Ladner, 174 Miss. 611, 165 So. 427; Sweatman v. Dean, 86 Miss. 641, 38 So. 231; McCormick Motor Co. v. McDonald, 153 Miss. 409, 121 So. 121; Wolfe v. Murphy, 60 Miss. 1; Pettibone v. Wells, 181 Miss. 425, 179 So. 336; State ex rel. Knox, Atty. Gen., v. Wyoming Mfg. Co., 138 Miss. 249, 103 So. 11; President, etc., of City of Natchez v. Minor, 10 Smedes M. (18 Miss.) 246; Virden v. Bowers, 55 Miss. 1; Code of 1930, Secs. 201, 203, 3162, 3165, 3166, 3172; Constitution of 1890, Sec. 79; Laws of 1906, Ch. 168, Sec. 11.
The court erred in holding that the property in suit was not sold at the courthouse door as advertised.
Neal et al. v. Shepard et al., 157 Miss. 730, 128 So. 69; Mixon v. Clevenger, 74 Miss. 67, 20 So. 148; Whitaker v. State, 141 Miss. 788, 106 So. 96; Harriss v. State ex rel. Dolan, 72 Miss. 960, 18 So. 387; Waller v. Arnold, 71 Ill. 350; Candler v. White, 84 S.Ct. 435; Longworthy v. Featherstone, 65 Ga. 165, 167; Code of 1930, Sec. 1578.
The appellees nowhere in their complaint offered to do equity by paying the 1932, 1933, and 1934 tax, or any tax which has accrued on said land since said time. The complainants simply sued to cancel the tax title of the State of Mississippi and the appellant Collins thereto. The rule in equity is so strong to require a litigant to do equity as a condition precedent to relief therein that it will even deny relief to one entitled thereto who does not offer to do equity, even as against one who could not successfully maintain a suit for the matter in controversy.
Williams v. Williams, 167 Miss. 115, 148 So. 358; Howie v. Panola-Quitman Drainage District, 168 Miss. 387, 151 So. 154; Laws of 1932, Ch. 286; 51 Am. Jur. 981, Sec. 1139, pp. 981-999; 61 C.J. 1409-10, Ssec. 2088.
One may be estopped to impeach or deny the validity of a tax title by a judgment ordering the sale of the land for non-payment of taxes, to which he was a party, by a statute making tax deeds conclusive evidence or vesting an unimpeachable title in the purchaser, by his own acts or admissions signifying his recognition of the tax title or ratification of the tax proceedings, as by his accepting and retaining the surplus proceeds of the sale, or by his misrepresentation, or concealment, or by his unreasonable delay in the assertion of his rights.
61 C.J. 1413; 18 Am. Jur. 167, Sec. 51; 19 Am. Jur. 682.
The general rule as to the election of remedies is that, where a party has a right to choose one of two or more appropriate, but inconsistent, remedies, and, with knowledge of the facts, makes deliberate choice, then he is estopped from resorting to the other remedy.
Warriner v. Fant, 114 Miss. 174, 74 So. 822; Barrier v. Kelly et al., 82 Miss. 233, 33 So. 974; West v. West, 131 Miss. 880, 95 So. 739.
The court erred in not dismissing the cross-bill of the State of Mississippi against the appellant Collings and in not entering a decree quieting and confirming the title to the property in suit in the appellant as against the State of Mississippi and the appellees.
Willoughby v. Pope, 101 Miss. 808, 58 So. 705; Mortimer v. Curle, 183 Miss. 17, 183 So. 485; Joe Duck Kwong v. Board of Mississippi Levee Commissioners, 164 Miss. 250, 144 So. 693; Gwynn v. Richardson et al., 65 Miss. 222, 3 So. 579; Butterworth, Commissioner, v. United States ex rel. Hoe, 112 U.S. 50, 5 S.Ct. 25, 34; United States v. Black, 128 U.S. 40, 9 S.Ct. 12; Ballenger, Secretary of the Interior, v. United States ex rel. Belle Frost, 216 U.S. 240, 30 S.Ct. 338; Orchard v. Alexander, 157 U.S. 372, 383, 39 L.Ed. 737, 741, 15 S.Ct. 635, 639.
Greek L. Rice, Attorney General, by W.B. Fontaine, Assistant Attorney General, for appellants, State of Mississippi and Guy McCullen, State Land Commissioner.
The roll filed by the assessor in each district should have contained only the property in that district.
Bullock v. Board of Supervisors of Covington County (Miss.), 77 So. 662; Horton v. King, 113 Miss. 60, 73 So. 871; Pearl River County v. Lacey Lumber Co., 124 Miss. 85, 86 So. 755; Laws of 1906, Ch. 168, Sec. 12.
The tax sale was held at the proper place.
Koch et al. v. Bridges, 45 Miss. 247; Thayer v. Hartman, 78 Miss. 590, 29 So. 396; Vasser v. George, 47 Miss. 713.
The notice to taxpayers was sufficient.
Byrd v. Byrd, 193 Miss. 249, 8 So.2d 510; Code of 1930, Sec. 3195.
In the briefs filed on behalf of some of the appellees it is contended that the tax sale involved was redeemed and a copy of the purported tax redemption receipt and release is to be found in the transcript of record. An examination of this exhibit shows that the taxes collected thereunder were by virtue of Chapter 190 of the Laws of 1934 and was in reality an extension of the tax sale as provided by said law rather than a full payment of all taxes due and unpaid at the time. It is the contention of the counsel for the appellants, State of Mississippi and Guy McCullen, State Land Commissioner, that this was not a full redemption from the tax sale involved but rather an extension granted under and by virtue of the provisions of Chapter 190 of the Laws of 1934 and that the statement itself shows only the payment of one year's taxes and a notation thereon by the chancery clerk that it was under the provisions of Chapter 190 of the Laws of 1934.
See Nixon's Heirs v. Carco's Heirs, 28 Miss. 414; Grandberry et al. v. Mortgage Bond Trust Co., 159 Miss. 460, 132 So. 334; Dogan, Sheriff, et al. v. Cooley, 184 Miss. 106, 185 So. 783; Morris Ice Co. v. Adams, 75 Miss. 410, 22 So. 944; Eastman Oil Mills v. State, 130 Miss. 63, 93 So. 484; Gift et al. v. Love, 164 Miss. 442, 144 So. 562; Constitution of 1890, Sec. 100; Griffith's Mississippi Chancery Practice, Sec. 39. Butler Snow and Lotterhos, Travis Dunn, all of Jackson, for appellee, Junior O'Mara.
The attempted tax sale here involved is void for the reason that it was not held at the door of the court house.
Thayer v. Hartman, 78 Miss. 590, 29 So. 396; Vasser v. George, 47 Miss. 713; Koch et al. v. Bridges, 45 Miss. 247; Bailey v. McRae, 176 Miss. 557, 169 So. 887; Harriss v. State ex rel. Dolan, 72 Miss. 960, 18 So. 387; Code of 1892, Secs. 306, 3811, 3813; Code of 1930, Secs. 220, 3247, 3249, 3273; Code of 1942, Secs. 2895, 9923; Laws of 1931, Ch. 25.
The attempted tax sale is void for the reason that it was not held upon the day fixed by law. It was advertised to be held on September 19, 1932, which was the third Monday of September and the day authorized by law for the holding of such sales. The land in suit was not sold on September 19, but was sold the following day to the state.
Bailey v. McRae, supra; Johnson v. Lake, 162 Miss. 227, 139 So. 455, 88 A.L.R. 262; Salter v. Polk, 172 Miss. 263, 159 So. 855; Laws of 1931, Ch. 25; Code of 1930, Sec. 1578; Code of 1942, Sec. 1739; 51 Am. Jur. 924, Sec. 1061.
The tax sale was void for the reason that the board failed to enter an order designating on what days during August it would begin in each of the two districts upon its hearing of objections to the roll or to name these days in the notice to the public.
Sharp v. Smith, 180 Miss. 887, 178 So. 595; Pettibone v. Wells, 181 Miss. 425, 179 So. 336; Gordan v. Smith, 154 Miss. 787, 122 So. 762; Cameron v. Whittington McGehee, 120 Miss. 595, 82 So. 311; Robertson v. First Nat. Bank, 115 Miss. 840, 76 So. 689; Henderson Molpus Co. v. Gammill, 149 Miss. 576, 115 So. 716; Rawlings v. Ladner, 174 Miss. 611, 165 So. 427; Federal Land Bank of New Orleans v. Cox, 183 Miss. 250, 183 So. 482; Belhaven Heights Co. v. May, 187 Miss. 101, 192 So. 6; Adams v. First National Bank, 103 Miss. 744, 60 So. 770; Board of Sup'rs of Greene County v. Snellgrove, 103 Miss. 898, 60 So. 1023; State ex rel. Atty. Gen. v. Harris (Miss.), 18 So. 123; Harriss v. State ex rel. Dolan, 72 Miss. 960, 18 So. 387; Sexton v. Board of Sup'rs of Coahoma County, 86 Miss. 380, 38 So. 636; Wade v. Woodward, 166 Miss. 406, 145 So. 737; Lee County v. James, 178 Miss. 554, 174 So. 76; Code of 1930, Sec. 6940; Laws of 1930, brought forward as Ch. 275, Sec. 3162, Code of 1930, and Sec. 9786, Code of 1942.
The failure of the tax assessor to file a complete roll in each district of the county rendered the assessment and sale void.
Wray v. Cleveland State Bank, 134 Miss. 41, 98 So. 442; Hunter v. Bennett, 140 Miss. 368, 115 So. 204; Turner v. Cochran, 89 Miss. 206, 42 So. 876; Code of 1942, Secs. 9786, 9789; Constitution of 1890, Sec. 112; Laws of 1906, Ch. 168, Sec. 12, Chs. 167, 169, 170, 171; Laws of 1934, Local and Private Laws, p. 740.
The release executed by the chancery clerk, taken in connection with the testimony, is a complete release of all claim or title by the state, and the tax sale, for this reason, is ineffective.
Stegall v. Miles, 194 Miss. 353, 12 So.2d 537; McLain v. Meletio, 166 Miss. 1, 147 So. 878; Maris v. Lindsey, 124 Miss. 742, 87 So. 12; Bousquet v. Brown, 152 Miss. 171, 119 So. 166; Kelly et al. v. Coker et al., 197 Miss. 131, 19 So.2d 519; Laws of 1934, Ch. 189, Code of 1930, Secs. 3152, 3264; Laws of 1934, Ch. 190.
There was no failure to do equity because appellees did not tender with their bill of complaint the allegedly unpaid taxes on the land involved. The State of Mississippi would be the only party in any position to complain in any event. Appellant Collings has no interest whatsoever in the taxes, since payment or tender, if made, would be to the State of Mississippi, and not to Mr. Collins.
Holmes v. Ford, 179 Miss. 673, 176 So. 524.
If mistaken in the foregoing, then proper procedure is for this Court to remand the case, with directions to the lower court to state an account with reference to the taxes and to impress a lien upon the property in favor of the state for the collection thereof.
O'Flinn v. McInnis, 80 Miss. 125, 31 So. 584; Ragsdale v. Alabama G.S.R. Co., 67 Miss. 106, 6 So. 630.
Robert L. Genin, of Bay St. Louis, J.R. Buchanan and Roy P. Noble, of Laurel, Walter L. Shows, of Jackson, and John T. Armstrong, of Hazlehurst, for appellees.
Until the assessment roll is prepared and filed in the manner, at the place, with the officer and at the time required by law, the assessment roll is a nullity.
Seals v. Perkins, 96 Miss. 704, 51 So. 806; Preston v. Banks, 71 Miss. 601, 14 So. 258; Carlisle v. Goode, 71 Miss. 453, 15 So. 119; Farasworth Lumber Co. v. Fairley (Miss.), 27 So. 836.
There was no legal land assessment roll prepared and filed in Jasper County, Mississippi, for the years 1930-1931. It is respectfully submitted that the failure to comply with the requirements of law as to filing of the entire assessment roll with the chancery clerk in each of the judicial districts of the county is as fatal to the validity of the assessment as is the failure of the tax assessor to file the roll with the clerk within the time required by law. Under Chapter 168 of the Laws of 1906, which act divided Jasper County into two judicial districts, each of the districts has separate courts, not only as to the circuit and chancery courts, but also as to the courts of the board of supervisors in the matter of the rendition of a judgment against the taxpayers and their property for state and county taxes, and the requirement of filing a copy of the entire roll with the clerk in each of the two judicial districts of the county was mandatory and jurisdictional, and the entire roll not having been filed in either of the two judicial districts, the court of the board of supervisors had no bill of complaint of or declaration against the taxpayers on which to base a judgment against them or their property.
Lindsley et al. v. Board of Supervisors of Coahoma County, 69 Miss. 815, 11 So. 336; Sharp v. Smith, 180 Miss. 887, 178 So. 595; Code of 1892, Secs. 3774, 3781, 3782, 3794; Code of 1906, Secs. 3407, 4283, 4290, 4291; Code of 1930, Secs. 3148, 3161, 3162, 3175, 3181; Constitution of 1890, Sec. 112; Laws of 1906, Ch. 168, Sec. 12; Laws of 1920, Ch. 323.
The tax assessment of lands in Jasper County for the years 1930-1931 was void for want of due process on the landowners. The process which brings the taxpayer into court is the publication of notice to taxpayers of the meeting or meetings to hear objections to assessments. The required statutory notice to taxpayers being a statutory substitute for personal summons, the requirements of statute as to the steps precedent to issuance of process by publication must be strictly followed, or the court does not obtain jurisdiction of the taxpayers and landowners. In performing their duties as to the steps precedent to the issuance of process, the county officers not only failed to follow the requirements of the statute relative thereto, but utterly disregarded the mandatory provisions of such statute, and made total departure not only from the provisions of statute, but made a total departure from the general laws relative thereto and the uniform rules provided by statute relative to assessment of lands.
Pettibone v. Wells, 181 Miss. 425, 179 So. 336; Moore v. Summerville, 80 Miss. 323, 31 So. 793, 32 So. 294; Robertson v. First Nat. Bank, 115 Miss. 840, 76 So. 689; Ponder v. Martin, 119 Miss. 156, 80 So. 388; Mercantile Acceptance Corporation v. Hedgepeth, 147 Miss. 717, 112 So. 872.
Although there was no authority of law for a split meeting in the month of July, 1930, the board performed a part of its equalization of the assessment rolls at its meeting at Paulding in the first judicial district of the county and part at an unauthorized adjourned meeting held at Bay Springs in the second judicial district of the county.
Adams v. First National Bank, 103 Miss. 744, 60 So. 770; Gamble v. Witty, 55 Miss. 26; Jackson v. Webster, 196 Miss. 779, 18 So.2d 298; Laws of 1906, Ch. 168, Sec. 11.
The manner of holding the meetings of the board of supervisors as to time and place of meeting is jurisdictional. The assessment roll, being the warrant used by the tax collector in the collection of taxes, is an entirety, and if the roll is not complete and is not equalized at a legal meeting of the board in its entirety it is not a legal warrant for the collection of taxes or for the sale of lands for taxes. A valid assessment is necessary to a valid sale of land.
Gamble v. Witty, supra.
In July, 1930, the board of supervisors of Jasper County did not comply with the mandatory requirements of statute and did not enter any order designating the days during August on which it would begin in each of the two districts its hearing of objections. Therefore, there was no due process upon the taxpayers nor upon their property and the tax sale of September 20, 1932, for 1931 taxes, was wholly null and void.
Sharp v. Smith, supra; Code of 1930, Sec. 3162.
The form of notice set out in the minutes of the July, 1930, meeting of the board, and the form of notice adjudicated to have been published as set out in full in the minutes of the August, 1930, meeting of the board did not name these return days in the notice, as required by statute. Therefore, the tax sale of September 20, 1932, for 1931 taxes, in the first judicial district of Jasper County, Mississippi, was null and void and conveyed no title to the state.
Code of 1930, Sec. 3162.
No valid judgment was entered against the taxpayers and landowners nor against their lands for the taxes to be levied against them for the year 1930-1931, since the board of supervisors acquired no jurisdiction of the subject matter nor of the taxpayers and landowners. The notice to the taxpayers, which is the process which brings the taxpayers into court, is jurisdictional. The records of the board of supervisors shall affirmatively show all jurisdictional facts to have existed at the time of the meeting when the board proceeded to act in making the assessment roll final and its proceeding in equalizing the assessments and assessing taxes. Not only did the minutes fail to affirmatively show such jurisdictional facts, but the minutes of the board of supervisors of Jasper County, Mississippi, for the year 1930 affirmatively show that the board of supervisors never did acquire jurisdiction of the subject matter nor of the taxpayers and landowners. Therefore, it is respectfully submitted that there was no legal assessment of the lands involved in this suit for the years 1930-1931, and the tax sale thereof made on September 20, 1932, for 1931 taxes, was wholly null and void, and the state acquired no title to the land sold at such sale.
Henderson Molphus Co. v. Gammill, 149 Miss. 576, 115 So. 716; Gordan v. Smith, 154 Miss. 787, 122 So. 762.
The October, 1930, special meeting of the board of supervisors, at which meeting the board received the order of the State Tax Commission and attempted to finally approve the assessment rolls, was an illegal and unauthorized meeting. This meeting was a special meeting of the board and the minutes failed to show that the notice for the special meeting was published as required by law and the notice of call of the special meeting does not comply with the mandatory provisions of Section 3162 of the Code of 1930.
Gamble v. Witty, supra; Henderson Molphus Co. v. Grammill, supra; Gordan v. Smith, supra; Code of 1930, Secs. 3162, 3178.
There was no legal levy of taxes in Jasper County for the years 1931-1932-1933. The order for the levy of taxes for said years did not order the taxes to be levied in mills or decimal fraction of a mill on each dollar of valuation upon the assessment rolls of the county for county taxes and did not adjudicate that the special levy made for the support and maintenance of the Heidelberg Special Consolidated School was made pursuant to a petition therefor.
Gulf S.I.R. Co. v. Harrison County, 192 Miss. 114, 4 So.2d 717; Code of 1930, Secs. 3227, 6654.
The purported tax sale of September 19, 1932, was not made at the front door of the building which had been designated as the temporary courthouse of the first judicial district of Jasper County, and which was on September 19 and 20, 1932, the legal courthouse of said district and county, but said purported tax sale was made at the site of the old burned courthouse which had been destroyed by fire on September 10, 1932. The purported tax sale was void as being made at a place other than the legally designated courthouse of such district.
Thayer v. Hartman, 78 Miss. 590, 29 So. 396; Miller v. Magnolia Building Loan Ass'n., 160 Miss. 367, 134 So. 136; Koch et al. v. Bridges, 45 Miss. 257; Vasser v. George, 47 Miss. 713; Hunter v. Bennett, 149 Miss. 368, 115 So. 204; Harriss v. State ex rel. Dolan, 72 Miss. 960, 18 So. 387, 33 L.R.A. 85; Sexton v. Board of Sup'rs of Coahoma County, 86 Miss. 380, 38 So. 636; Herndon v. Mayfield, 79 Miss. 533, 31 So. 103; Jones v. State, 168 Miss. 702, 152 So. 479; Smith v. Cox, 115 Ala. 503, 22 So. 78; Dixon v. Thompson, 52 Ind. App. 560, 98 N.E. 738; Ruberg v. Huntsman, 32 Mo. 501, 82 Am. Dec. 143; McNair v. Jenson, 33 Mo. 312; Hull v. Turnverein Germania, 77 Okla. 242, 187 P. 920; Davenport v. Wolf, 59 Okla. 92, 158 P. 382; Tulsa v. Edwards, 111 Okla. 251; Code of 1930, Sec. 220, Code of 1942, Sec. 2895; Laws of 1931, Ch. 25; 31 Am. Jur. 436; 26 R.C.L., Sec. 356; 120 A.L.R. 664.
The issuance of the redemption release from said tax sale issued by the chancery clerk on September 20, 1935, operated as a full release of all claims of the state against the land in suit and operated to destroy said purported tax sale of the lands in suit as a muniment of title.
Adams v. Mills, 71 Miss. 150, 14 So. 462; Maris v. Lindsey, 124 Miss. 742, 87 So. 12; Stegall v. Miles, 194 Miss. 353, 12 So.2d 537; Bousquet v. Brown, 152 Miss. 171, 119 So. 166; McLain v. Meletio, 166 Miss. 1, 147 So. 878; Kelly v. Coker, 197 Miss. 131, 19 So.2d 519; Darrington v. Rose, 128 Miss. 16, 90 So. 632; Code of 1930, Sec. 3273; Laws of 1934, Ch. 190; 134 A.L.R. 1300.
The tax collector had no legal warrant when he attempted to sell said lands for taxes on September 20, 1932, the original and tax collector's copies of the land assessment roll for 1930 having been destroyed by fire on September 10, 1932, and no action had been taken to replace this destroyed record prior to said attempted tax sale. The tax collector attempted to make said tax sale, using the newspaper advertisement as his warrant.
Code of 1930, Sec. 3190.
Under the facts in the case at bar the statute of limitations provided for in Chapter 196 of the Laws of 1934 could not have been applied in bar of appellees' suit to cancel said tax sale and forfeited tax land patent issued thereunder as clouds on their resective titles. Appellants acquired no vested property rights under the provisions of Chapter 196, Laws of 1934.
Russell Investment Corporation v. Russell, 182 Miss. 385, 182 So. 102; Grant v. Montgomery, 193 Miss. 175, 5 So.2d 491; Leavenworth v. Claughton, 197 Miss. 606, 19 So.2d 815.
The appellants acquired no vested property rights under the provisions of Chapter 190 of the Laws of 1934. This statute provides that the rights granted by said statute shall not be construed as vested rights. The purchaser of a tax title from the state is not an innocent purchaser but the rule of caveat emptor applies.
Roebuck v. Bailey, 176 Miss. 234, 166 So. 358; Bolton v. Roebuck, 77 Miss. 710, 27 So. 630; Kelly et al. v. Coker et al., supra; 61 C.J. 1328.
The appellees were not required to make tender to appellant Collins or to the state, nor are appellees estopped, because of the redemption, or by any other acts on their part, from attacking the validity of the tax sale and all steps precedent thereto.
Williams v. Williams, 167 Miss. 115, 148 So. 358; Davis v. Vanarsdale, 59 Miss. 367; Hodge Shipbuilding Co. et al. v. City of Moss Point, 144 Miss. 657, 110 So. 227; Farasworth Lumber Co. v. Fairley (Miss.), 27 So. 836, 28 So. 569; Edwards v. Edwards, 193 Miss. 889, 11 So.2d 450; Canal Commercial Trust Savings Bank v. Brewer, 143 Miss. 146, 184, 108 So. 424, 109 So. 8; Turnipseed v. Hudson, 50 Miss. 429; Roberts v. Bookout et al., 162 Miss. 676, 139 So. 175; Meyerkort et al. v. Warrington et al. (Miss.), 19 So.2d 433; Gottlieb et al. v. Babin et al. (La.), 2 So.2d 218; Conner et al. v. Allison et al. (La.), 178 So. 756; Griffith's Mississippi Chancery Practice, Secs. 178, 180; 26 R.C.L. 477, Sec. 402; 61 C.J. 1414, Sec. 2016.
Argued orally by W.H. Cox and W.B. Fontaine, for appellant, and by J.R. Buchanan, Vardaman S. Dunn and Robt. L. Genin, for appellee.
The decree of the trial court canceled, as a cloud upon the title of the appellees, a tax sale made on September 20, 1932, to the State of Mississippi of the N.E. 1/4 of the N.E. 1/4 of Sec. 31, Township 1 North, of Range 13 East, situated in the First Judicial District of Jasper County, for the taxes alleged to be due thereon for the year 1931; and also canceled the forfeited tax land patent from the state, dated December 20, 1943, issued to the appellant, Roy P. Collins, for said land. The validity of the tax sale was assailed by the appellees on several grounds; but in view of the conclusion that we have reached on one of the grounds assigned, viz., that the sale was made at the wrong place, we deem it unnecessary to consider any of the others.
The proof discloses that the courthouse at Paulding, in the First Judicial District of the county, burned on September 10, 1932; that on September 16, 1932, the sheriff, by written proclamation, designated the two east rooms on the lower floor of the building at Paulding known as the Teachers' Home of the Paulding Consolidated School, as the temporary courthouse, pending action in regard thereto by the board of supervisors, under the authority of section 220, Code 1930, section 2895, Code 1942; that on September 18, 1932, at about 10 o'clock a.m., the board of supervisors convened at the place so designated by the sheriff as a temporary courthouse and caused to be entered an order upon its minutes of that day, which recites the fact that the former courthouse had been destroyed by fire, the issuance of the proclamation by the sheriff, which is set forth at large in said order, and approves the designation made by the said officer of the said two east rooms of the Teachers' Home as "the courthouse for the present;" that the place thus designated was located approximately 175 to 200 yards from the former site of the courthouse building which had recently burned; and that due to an obstruction of the view by some other buildings, the site of the ruins of the old courthouse, where the appellees assert that the tax sale was held, could not be seen from the door of the building known as the Teachers' Home.
The proof further discloses, without dispute, that on September 19, 1932, the deputy sheriff conducted the tax sales of land for the first district of said county in front of the concrete steps left among the ruins where the old courthouse had stood, and that he concluded the sales made on that day at some time between the noon hour and 1 o'clock p.m., all at that place, according to the testimony of a witness who was present throughout the time the lands were then being offered for sale. That no sales were made during that afternoon, due to the fact that someone had suggested to the deputy that the sale was probably being conducted at a place not authorized by law, since the same had been advertised, and was required to be held at the courthouse door. That thereupon the deputy left the place of sale, went to the town of Bay Springs, in the second district of the county, and later, in company with the sheriff, proceeded to the city of Laurel to obtain legal advice as to the proper place for further conducting such tax sale. That these two officials did not return to Paulding before the expiration of the legal hours of sale on that day. That on the next morning, however, the sale was resumed by the deputy sheriff at the ruins of the old courthouse, and was continued at that place, according to the testimony of the sheriff, until some time between the noon hour and 1 o'clock p.m., when he left the premises. And it is fair to assume that the sale had been thus continued at that place on the morning of the 20th day of September pursuant to the legal advice obtained at Laurel, from the attorneys for the board of supervisors, the previous afternoon.
Whether or not any sales were made during the afternoon of September 20th at the door of the newly established courthouse in the Teachers' Home, including the sale of the land here involved, does not affirmatively appear from the evidence introduced at the trial. However, we think that the chancellor was warranted in finding, in the absence of any evidence to the contrary, that if any sales were made during the afternoon of that day, they occurred at the ruins of the old courthouse, pursuant to the legal advice obtained on the day before by the sheriff and his deputy, which was acted and relied upon during the forenoon of that day, as aforesaid, because it would seem altogether unlikely that the deputy would have changed the place of sale from where he had conducted the same that morning to the newly established courthouse without the advice and consent of the sheriff, whose testimony fails to disclose that he knew anything about such change if, in fact, the same was made, and the deputy did not testify, having died prior to the trial of this case.
But if we are mistaken in the above conclusion, the trial court was nevertheless sustained in his finding that all of the sales were made at the ruins of the old courthouse, for the reason that such fact was expressly alleged by the amended bill of complaint of the appellees, and this allegation was neither expressly nor by necessary implication denied by the answer of the appellant, Roy P. Collins, to the amended bill of complaint. In fact, his answer avers that the sale was made at the door of the courthouse, "as advertised," and most assuredly it was not advertised to be held at the door of the building known as the Teachers' Home, because such place was not designated by the board of supervisors as the courthouse until the day of sale. Moreover, the answer of said Collins denies that the two east rooms on the lower floor of the Teachers' Home was ever legally proclaimed by the sheriff and designated by said board as the courthouse prior to the tax sale. But the fact that all of the sales were made at the site of the burned courthouse is admitted here by the Attorney General in his brief on behalf of the appellant, the State of Mississippi. And section 380, Code 1930, section 1291, Code 1942, provides, among other things, as follows: "All matters of fact averred in the bill and not denied by the answer otherwise than by the general traverse, may be taken at the hearing as admitted."
Section 3249, Code 1930, section 9923, Code 1942, contains, among other provisions, the following: "Neither a failure to advertise, nor error in the advertisement, nor error in conducting the sale, shall invalidate a sale at the proper time and place for taxes of any land on which the taxes were due and not paid, but a sale made at the wrong time or at the wrong place shall be void."
It is manifest that there can be but one place at which a tax sale can be legally held. Otherwise, prospective bidders would not know where to go. Therefore, if the sale in the instant case could have been legally held at the newly established courthouse, then a sale held at the ruins of the old courthouse would be invalid. In the case of Thayer v. Hartman, 78 Miss. 590, 29 So. 396, one of the grounds upon which the appellant, Thayer, challenged the validity of the sale there in question, was that it did not take place at the tax door of the courthouse of the county. In that case it appeared that the courthouse of Lincoln county, at Brookhaven, was entirely destroyed by fire on the 6th day of November, 1893; that the November term (1893) of the circuit court of that county was held shortly thereafter in the Masonic Hall in the city of Brookhaven, which hall was rented for one month only for that purpose; that offices for the sheriff and circuit clerk had been provided for in the Storm's Building, and that an office for the chancery clerk of said county had been provided for in the Abrams Building; that the Board of Supervisors held its March, 1894, meeting, in the chancery clerk's office, and at the same meeting passed an order, on March 5, 1894, directing the sale of lands delinquent for taxes to be made that day at the said office of the chancery clerk, and this order further provided that, "said building (Abrams Building) shall be, and the same is hereby designated as the courthouse of Lincoln County, Mississippi." The place thus designated as the courthouse was 300 or 400 yards from the Masonic Hall, where the November term of the circuit court had been held, and was some 500 or 600 feet from the ruins of the courthouse destroyed by fire.
The trial court confirmed the tax title of Hartman, and Thayer appealed to this Court. In upholding the decree of confirmation of the tax sale this Court said: "The court house was entirely destroyed by fire in November, 1893, and it had not been rebuilt when the sale of lands delinquent for taxes occurred, and it became necessary to provide a building to be used as a court house until a new one could be constructed. It was the business of the board of supervisors to provide such building, and to designate it for that purpose. Upon a designation of a building to be used as a court house of the county, it immediately became such court house. Such order of the board designating a building as a court house operated at once to make such building the court house of the county. It needed no publication or notice [of its existence] to give it validity. It operated instantly from the necessity of the case. The power of the board of supervisors to appropriate a building for a court house in emergencies of the kind before us is unlimited, and such appropriation operates instantly to make such building the court house of the county; and all acts there done, however soon thereafter, are as valid as if sanctioned by immemorial usage."
If the tax sale held at the chancery clerk's office in the case of Thayer v. Hartman, supra, was validly held there, then it could not have been validly held at the ruins of the old courthouse of Lincoln County. Under the authority of that decision, the tax sale here involved could have been legally held at the door of the building known as the Teachers' Home at Paulding, where the board of supervisors was then in session, and where the business of certain county offices was then being conducted, and it follows that any other place where the tax sale may have been conducted was the wrong place, and by the plain terms of our statute, section 3249, Code 1930, section 9923, Code 1942, the sale was null and void.
As for the necessity of a tax sale to be held at the place provided by law, in order to be valid, see, also, Koch et al. v. Bridges, 45 Miss. 247; Vasser v. George, 47 Miss. 713, 721; Miller v. Magnolia Building Loan Ass'n, 160 Miss. 367, 134 So. 136; Dixon v. Thompson, 52 Ind. App. 560, 98 N.E. 738; Rubey v. Huntsman, 32 Mo. 501, 82 Am. Dec. 143; Hill v. Turnverein Germania, 77 Okla. 242, 187 P. 920; 26 R.C.L., Sec. 358; and 31 Am. Jur. 436.
The appellees derive their title to the land in controversy through John Jones, Sr., deceased, who had been in actual possesson thereof since the year 1870, and whose heirs-at-law had continued in such possession from the date of the tax sale in September, 1932, to the trial of the case, according to the finding of fact made by the chancellor, and which is sustained by the evidence.
The decree of the trial court, which canceled the tax sale as a cloud upon the title of the appellees, as complainants in the court below, and also the tax forfeited land patent issued by the state in favor of the appellant, Roy P. Collins, and quieted and confirmed the title of the appellees to the land involved, must therefore be affirmed.
Affirmed.