Opinion
No. 30771.
April 23, 1934.
1. RECORDS.
Affidavits respecting date of ninety-nine year lease destroyed in courthouse fire, and which were executed pursuant to statute that such affidavits when executed and recorded should stand in place of lost deed, held to control over conflicting recitals contained in deeds conveying part of land involved (Laws 1858, chapter 371).
2. MUNICIPAL CORPORATIONS.
State's property may not be, and court will assume is not, embraced in statute making abutting property liable for local improvements (Code 1930, sections 2558, 2562).
3. MUNICIPAL CORPORATIONS. Public lands.
Though state owned fee of sixteenth-section school lands, exclusive right of lessee thereof to use and possession during lease was "property right;" hence to that extent lands were property of lessee, and subject to state, county, and municipal taxes and assessments for local improvements and sale of such lands for nonpayment of taxes or local assessments thereon during life of lease could not divest state of its reversion thereto on expiration of lease (Code 1930, sections 2558, 2562).
APPEAL from Chancery Court of Attala County.
J.D. Guyton, of Kosciusko, for appellant.
"Recitals in deeds" have long since by the courts been given quite high value as evidence. The older the deeds are, the stronger the value as evidence of fact stated in such recitals. In the absence of reliable and quite convincing evidence to the contrary, they are accepted as true.
Jones on Evidence (3 Ed.), sections 50 and 281; 22 C.J., page 859, sec. 1028, page 970, sec. 1210; Jones v. Frank, 123 Miss. 280, 85 So. 310; McLemore v. Anderson, 92 Miss. 42, 43 So. 878, 47 So. 801; Bowen v. Chess, 83 Miss. 218, 35 So. 444; Clark v. Hibler, 109 Miss. 432, 69 So. 220.
On the other hand, ex parte affidavits are always regarded as weak evidence, when receivable at all.
2 C.J. 376, sec. 149; 23 C.J. 38, sec. 1780.
The appellant, being the owner of a mere lease of this land for a term of years, is not an "owner" of the lot that should be assessed and the law requires to be assessed. The assessment being made against the appellant's "leasehold interest" in this lot for the entire one-third of the cost as it were the fee, is void on its face; and a void judgment is subject to collateral attack at any time.
Moss Point Lbr. Co. v. Harrison County, 89 Miss. 448, 42 So. 290; Jefferson Davis County v. Lumber Co., 49 So. 611, 94 Miss. 530; 44 C.J., Municipal Corporations, secs. 3292 and 3293; Martin v. Miller, 103 Miss. 754, 60 So. 772; Swayne v. Hattiesburg, 111 So. 818, 147 Miss. 244; Paepecke-Leight Lbr. Co. v. Savage, 137 Miss. 11, 101 So. 709; Gulf View Apartments v. City of Venice, 145 So. 842; Jones v. Madison County, 72 Miss. 777, 18 So. 87.
Section 112 of the Constitution, the equality and uniform taxation clause, applies only to ad valorem taxes. It does not apply to special assessments like that in the case at bar.
Daily v. Swope, 47 Miss. 367; Clarksdale Ins. Agency v. Cole, 87 Miss. 637, 40 So. 228; Cox v. Wallace, 100 Miss. 525, 56 So. 461; Jones v. Belzoni Dr. Dist., 102 Miss. 796, 59 So. 921; Stingly v. Jackson, 140 Miss. 19, 104 So. 465; Edwards House Co. v. Jackson, 91 Miss. 429, 45 So. 14; 44 C.J., Municipal Corporations, sections 2822, 2904 and 2895.
Cities and counties have no inherent powers of taxation. All their power to tax is derived solely from legislative grant expressly given or necessarily implied.
Daily v. Swope, 47 Miss. 366; Beck v. Allen, 58 Miss. 166; Adams v. Kuykendall, 83 Miss. 583, 35 So. 830; 43 C.J., Municipal Corporations, secs. 185, 187, 189 and 190; 44 C.J., Municipal Corporations, secs. 4271, 4272 and 4811.
Chapter 194, Laws of 1924, under which the defendant city of Kosciusko operated in this case, is a complete scheme of making public improvements in itself; and to it alone and statutes in pari materia we must look for all its powers to make such improvements and to assess the benefits or cost thereof against property.
44 C.J., Municipal Corporations, sec. 2822; Swayne v. Hattiesburg, 147 Miss. 244, 111 So. 818; Stingley v. City of Jackson, 140 Miss. 57, 104 So. 465.
Since the decision by this court of Stingley v. City of Jackson, 140 Miss. 57, and Swayne v. Hattiesburg, 147 Miss. 244, wherein, in the last named case, this court said that "the state or any political subdivision of the state with the authority of the state may tax property for public purposes to the extent of confiscation," we do not here, nor are we called on so to do, question, the power of the Legislature to provide that 16th section lands, or the leasehold interest therein, shall or may be assessed with the cost or a portion thereof of such street improvements. We do contend that the Legislature has not provided therefor; and without such legislative authority the defendant city is without power to assess such property.
60 C.J. 215, sec. 92; Gray's Limitations on Taxing Power, secs. 1925-1933; Edwards Hotel and City Ry. Co. v. Jackson, 51 So. 802, 96 Miss. 547; Harvey Coal Co. v. Dillon, 53 S.E. 928, 6 L.R.A. (N.S.) 628; Moss Point Lbr. Co. v. Harrison County, 89 Miss. 448, 42 So. 290.
A local assessment can only be levied on land; it cannot as a tax be made a personal liability of the taxpayer; it is an assessment on the thing supposed to be benefited.
Macon v. Patty, 57 Miss. 386; 44 C.J. 485, sec. 2811; 44 C.J. pp. 519-521.
Statutes authorizing municipalities to make public improvements and charge the cost or benefits to adjoining lots are in derogation of the common law, and must be strictly construed.
44 C.J. 492, sec. 2283.
Local improvement assessments are levied solely for a particular purpose, end with the accomplishment of that purpose, are based on benefits to the property assessed, are charges against the property only, and are not a personal liability of the property owner.
San Diego v. Linda Vista Dr. Dist., 35 L.R.A. 33, and note; Macon v. Patty, 57 Miss. 378; Dailey v. Swope, 47 Miss. 367; Nugent v. City of Jackson, 72 Miss. 1040, 18 So. 493.
Section 3156, Code of 1930, has no application to assessments for local improvements.
Leflore County v. Whittington, 118 Miss. 799, 80 So. 8.
James T. Crawley, of Kosciusko, for appellee, Attala County.
A form of affidavit has been provided by the Legislature to cover a case exactly on all fours with this one.
Section 7, chapter CCCLXXI, Laws 1857 to 1860.
We understand the force of the argument of counsel with reference to recitals in deeds as well as the rule with reference to ancient documents. However, in a case of this kind where the statutory remedy is to be considered it transcends the ordinary rules of law with reference to the construction placed upon recitals in deeds and the rule with reference to ancient documents.
On the admission of Mississippi as a state into the union the title to the 16th sections vested in it without grant from the United States.
Jones v. Madison County, 72 Miss. 777; Street v. City of Columbus, 75 Miss. 822; Cooper v. Roberts, 18 Howard 181.
The title to the 16th section of land is in the state in trust for the support of the schools of the township.
Jefferson Davis County v. James-Sumrall Lbr. Co., 94 Miss. 530.
The leasehold interest in sixteenth section lands is what is taxable and not the fee title itself.
Street v. City of Columbus, 75 Miss. 822; North American Lbr. Co. v. City of Blaine, 154 P. 446, 89 Wn. 366; City of Mt. Sterling v. Montgomery County, 153 S.W. 952, 152 Ky. 637, 44 L.R.A. (N.S.) 57; City of Grenada v. Grenada County, 76 So. 682.
The courts of Mississippi will hold that unless there is a clear statutory enactment providing for the assessment of public property for public benefits, that the same cannot be had and cannot be charged against the county.
Thogmartin v. Nevada School District, 176 S.W. 473, 189 Mo. App. 10; Rabel v. City of Seattle, 87 P. 520, 44 Wn. 482; City of Lagrange v. Troup County, 132 Ga. 384, 16 Ann. Cas. 885; State v. Kilburn, 129 Am. St. Rep. 205; City of Huntsville v. County of Madison, 52 So. 326, 166 Ala. 389; State v. New Orleans Land Co., 75 So. 515; Whittaker v. City of Deadwood, 122 N.W. 590.
The exemption of educational property from taxation does not apply to local assessments against real property, based on benefits which accrue to it from public improvements.
School, etc., v. Summerville, 181 Ind. 463, Ann. Cas. 1916D 661; City of Nokomis v. Zepp, 92 N.E. 246; Star Street In Borough of Queens, 131 N.Y.S. 71, 73 Misc. Rep. 380.
Our contention that the title to this property being reserved in the state, only the leasehold interest of the lessee could by any means be taxed, is borne out by section 6767 of the Code of 1930, which applies to the assessments of sixteenth section lands for the purpose of paying drainage assessments. This is controlling so far as the county is concerned.
Ralph L. Landrum, of Kosciusko, for appellee, City of Kosciusko.
The affidavits are the best possible evidence of when the lease expired; the affidavits having been made by the two persons most vitally interested in the lease at the time it was made, and the two people who showed to be fully and personally acquainted with the facts if anyone was. Affidavits were made in accordance with and under statutory authority.
The finding of the trial court that appellant is precluded from questioning the assessment made by the said city of Kosciusko, against his sixteenth section lot for special improvements by virtue of his not appealing from such assessment, is correct.
Chapter 194, Miss. Laws of 1924.
Issues arising under law relating to objections to improvement by majority of people only are appealable.
Faison v. Indianola, 127 So. 558.
As C.C. Lord did not appeal, although he had the right to appeal from the finding of the mayor and board of aldermen that said improvements were necessary he therefore is precluded from now questioning this assessment.
McArthur v. City of Picayune, 125 So. 118, 156 Miss. 456; Section 6, chapter 194, Laws of 1924; Edwards House Co. v. Jackson, 91 Miss. 429, 45 So. 14; McClure v. City of Natchez, 118 So. 616; Union Savings Bank Trust Co. v. City of Jackson, 84 So. 288, 122 Miss. 557.
Appellant, C.C. Lord, is estopped to now question the validity of the assessment.
44 C.J., pages 686, 691, sec. 693, page 768, and page 302, sec. 2471.
Appellant's leasehold interest in the sixteenth section lot in the city of Kosciusko is subject to the assessment for special improvements made by the city on property adjoining the lots.
Chapter 194, sections 5, 6, 7 and 8, Laws of 1924; Trimble v. Seattle, 231 U.S. 683; N.Y. v. Tax Commissioner, 199 U.S. 1; Perry v. Norfolk, 220 U.S. 472, 108 Va. 28; 25 R.C.L. 116; Granite State Land Co. v. Town of Hampton, 76 N.H. 1, 79 A. 25.
Public property can, by statute, be made liable for special assessments in all of the states.
Dinn et al. v. Board of Education, 202 N.Y. Sup. 62, 121 Misc Rep. 633.
Local assessments for improvements in cities or villages are contributions which property owners are required to pay, not as a general burden for the support of the government but as an equivalent or compensation for the enhanced value which the property has acquired from the improvement.
Re Howard Ave., 86 P. 117.
The law is well settled that exemption from taxation does not mean exemption from special assessments.
Board of Imp. v. School Dist. (Ark.), 19 S.W. 969, L.R.A. 418; Board of Com. v. Ottawa, 31 P. 788; Edwards Walsh v. Jasper Co., 90 N.W. 1006; City of Wichita v. Board of Education, 142 P. 946.
Miss. Code of 1930, section 3156, says that sixteenth sections shall be taxed as other lands are taxed during the continuance of the lease.
Leflore County v. Whittington, 118 Miss. 799, 80 So. 8; Street v. Columbus, 75 Miss. 822.
Special assessments, as distinguished from other forms of taxation, are those special and local impositions upon the property in the immediate vicinity of municipal improvements which are necessary to pay for the improvements, and are laid with reference to the special benefit which the property is supposed to have derived therefrom.
79 A.L.R. 704, 25 R.C.L. 82; City of Pascagoula v. Valverde, 103 So. 198.
There is one case which is exactly like this case, and that is the case of the City of Chicago v. University of Chicago, 302 Ill. 455, 134 N.E. 723, 23 A.L.R. 244.
Appellee admits that the sixteenth section fund would not be liable for these special assessments without a special act of the Legislature, but appellee is not attempting to hold the fee of the sixteenth section and the sixteenth section funds for the special assessment. All appellee is attempting to tax is the leasehold interest of appellant, and which it clearly has authority to do, and no further authority is needed than section 3156 of the Code and the power granted under chapter 194 of the Laws of 1924.
The appellant's sixteenth section land in the city of Kosciusko is subject to and liable for the full costs of the special improvements made by said city, abutting it as if said lot were owned in fee.
Granite State Land Co. v. Town of Hampton, 79 A. 25, 76 N.H. 1; 44 C.J. 522; Manor v. Goldsmith, 216 Pa. 489, 65 A. 1084, 10 L.R.A. (N.S.) 342; York City v. Beitzel, 41 Pa. Super. 194; Chicago v. University of Chicago, 302 Ill. 455, 134 N.E. 723; Jetton v. University of the South, 208 U.S. 489, 52 L.Ed. 584; 83 A.L.R. 793; Hackworth v. Louisville Artificial Stone Co., 106 Ky. 234, 50 S.W. 33; Delker v. Owensborough, 30 Ky. L. Rep. 440, 98 S.W. 1031; Thomas v. Thomas, 244 Ky. 724, 51 S.W. 949; Hamilton v. Kennibrew, 161 Ga. 495, 131 S.E. 470; Los Angeles County v. Winnans, 13 Cal.App. 234, 109 P. 640.
Argued orally by J.D. Guyton, for appellant, and James T. Crawley and Ralph Landrum, for appellees.
In 1929, under chapter 194, Laws of 1924, the city of Kosciusko, by proper resolutions and ordinances, made certain special improvements on Wells and North streets in said city, consisting of street paving and storm sewer improvements, and assessed one-third of the cost thereof to the abutting property on each side of these streets, and the remaining one-third to the city.
The appellant is the owner of an unexpired lease of sixteenth-section school lands fronting on Wells street for a distance of one thousand two hundred fifty feet, and on North street for a distance of two hundred seventy feet. For making these special improvements, appellant's leasehold interest in said land was assessed by the city the total sum of five thousand six hundred thirty-six dollars and nine cents, this being one-third of the cost of making said special improvements along and immediately in front thereof. This assessment was made payable in ten annual installments; and there was no appeal therefrom by the appellant or any abutting property owner. Thereafter, the taxes due on this assessment against appellant's leasehold interest being in default for an annual installment, after due advertisement, the appellant's above-described leasehold interest was sold to the city for said delinquent taxes.
Afterwards the appellant filed the bill of complaint in this cause against the city of Kosciusko, and the board of supervisors of Attala county, alleging that he was the owner of an unexpired leasehold interest in said sixteenth-section land, both by mesne conveyances and by adverse possession, and deraigned his title in so far as the records were available. The bill charged that the original lease of these lands was executed many years ago, for a period of ninety-nine years, but that the exact date thereof was unknown on account of the destruction by fire of the deed records of Attala county in the year 1858, and, therefore, the date of the expiration of the said lease was unknown. Upon this phase of the case the bill prayed for a decree fixing the expiration of his lease, and quieting and confirming his title thereto.
The bill of complaint further challenged the right of the city to assess appellant's leasehold interest in said land with any part of the cost of said special improvements, on the ground that he was not the owner of the said land abutting on the streets in question, but was merely the lessee thereof for an unexpired term of years, the remainder or fee of said land being in state of Mississippi as trustee for the benefit of education, and, therefore, not liable for the cost of making special and permanent public improvements along the same. The bill further charged that the assessment and sale of this leasehold was void for the reasons above stated, and prayed that the sale be decreed to be void for other stated reasons. The bill further charged that if the complainant was mistaken in the contention that his leasehold was not assessable for any part of this special improvement tax, then it could only be assessed with a proportionate part of said cost, and he was entitled to an apportionment of the cost between him as lessee and the owner or beneficiary of the remainder interest in said premises, as represented by the board of supervisors. The bill prayed that the said assessment and sale thereunder for delinquent taxes be decreed to be void, and be set aside and canceled in so far as it affected his leasehold interest, and that in the event the court should determine that appellant's interest in said land was liable for only a portion of the cost of improvement, that it apportion such cost between the respective parties.
The court below fixed the date of expiration of the lease as being October 12, 1948, and held that the leasehold interest of appellant is liable for the full amount assessed against it for said improvements, and that the board of supervisors is not liable for any part of such costs, and cannot be required to pay the same out of any sixteenth-section funds under its control. The court further held that the sale of the leasehold was void for reasons not necessary to here state, since there was no appeal by the city from the decree so declaring.
As bearing upon the date of the original ninety-nine year lease of this sixteenth-section land, and for the purpose of fixing the date of the expiration thereof, there was offered in evidence two affidavits executed on the 16th day of November, 1861, and recorded in the deed records of the county in the year 1863. One of these affidavits recited that, on or about the 12th day of October, 1849, the land in question was leased to one Ozias Lewis for the term of ninety-nine years, and that at the time of the execution of the lease, the affiant was president of the board of trustees of said section 16, which executed the lease, and that such affidavit was executed for the purpose of being admitted to record as evidence of said lease, and the making, signing, sealing, and delivery thereof to the said Ozias Lewis. The other affidavit was executed by Ozias Lewis, and was to the effect that on or about the 12th day of October, 1849, the board of trustees of said sixteenth section leased to him a portion thereof, which includes the land here involved, and that such affidavit was executed in pursuance of the statute, as evidence of the execution of said lease. These two affidavits were originally executed and recorded in pursuance of, and substantially in the form prescribed by, chapter 371, Laws of 1858, which is an act entitled, "An Act further to remedy the evils occasioned by the burning of the courthouse of Attala County." Section 7 of this act reads, in part, as follows:
"Be it further enacted, That in all instances where original deeds may have been destroyed by fire, or are supposed to have been so destroyed, in the burning of the court-house of said county, which deeds conveyed lands lying in said county, it shall be lawful for the grantee, or other person interested in the preservation of the evidence of said deed, to make affidavit of the execution of such deed, distinctly stating the date or about the date of its execution, and by whom executed, and upon what consideration and what land was conveyed by it, which affidavit may be subscribed and sworn to before any person now authorized by law to administer oaths in this State, and shall be substantially in the following form, to-wit: (Form set out.)
"And if any person filing such affidavit, shall desire so to do, it shall be lawful for him to obtain the affidavit of any person or persons corroborative of his own, and any such affidavits as herein provided for may be filed with the clerk of the probate court of said county of Attala, who shall record the same upon the records of deeds in the same manner as he is required to record deeds, and under the same penalties; and shall be entitled to the same fees, as he is entitled to charge for similar services in reference to deeds, and thereupon the said affidavits when entered of record, shall stand in lieu of the deed described therein, and shall relate back to the date of the deed described therein, and shall be as valid and effectual as evidence of the deed described therein, as if such deed were produced, and shall be color of title, and shall in all respects stand as deeds, and the same or copies thereof, from said record, shall be evidence in any controversy in any court of law or equity in this State, subject however to be rebutted by proof of their falsity."
The only further evidence bearing on the date of the expiration of this lease are recitals in reference thereto found in three certain deeds appearing of record in said county, which conveyed a portion of the land covered by the original lease thereof.
By the use of a magnifying glass, as shown by the record, the chancellor determined that the date recited in one of these deeds was different from that recited in the other two. The affidavits in evidence were executed and recorded in pursuance of legislative authority that such affidavits, when executed and recorded, should stand in lieu of the lost deed, and should be valid and effectual as evidence of the lost deed described therein, and should in all respects stand as a deed, and be prima facie evidence thereof in any court of law or equity in this state. We think these affidavits, executed under legislative authority for the purpose of re-establishing the lost or destroyed deed, were of higher probative force than the mere recitals of the two deeds which tended to establish a different date of the expiration of the lease, and that the chancellor correctly so held. Therefore, the decree fixing October 12, 1948, as the date of the expiration of the lease will be affirmed.
This brings us to the liability vel non of the land here in question to a local assessment for a public improvement. Sections 1 and 5, chapter 194, Laws of 1924, sections 2558 and 2562, Code 1930, provide that local improvements may be made by a municipality "at the cost of the property owners benefited thereby," and "that the whole or such part of the cost and expense thereof, as it shall fix, shall be assessed against the property abutting upon the improvement." As this land abuts on the street paved, it is within the description of the property which municipalities are authorized by the above statutes to assess for local improvements unless the fact that the fee to the land is in the state excludes it therefrom.
Under the general rule for construing statutes, property owned by the state may not be, and we will assume is not, embraced therein. The question then is: Is this property owned by the state within the meaning of this rule? Under the statutes by virtue of which this land was leased from the state it continues to own the fee, but has parted with all right to the use and possession therefor for the life of the lease, exclusive right to which during the life of the lease is vested in the lessee. This right is a property right, and to that extent the land embraced within the lease is the lessee's property and is subject to assessment for state, county and municipal taxes. Street v. City of Columbus, 75 Miss. 822, 23 So. 773. It is true that this case dealt with ordinary taxes and not assessments for local improvements, but there is no difference in this connection in principle between the two characters of taxes; both constitute burdens imposed for public purposes.
If the sections of the statute hereinbefore cited do not include property owned by the state, of course any sale of sixteenth-section land for the nonpayment of taxes or local assessments thereon during the life of the lease would pass only the title of the lessee or his assignee, and could not divest the state of its reversion thereto on the expiration of the lease.
In the case of Edwards Hotel City St. Railroad Co. v. City of Jackson, 96 Miss. 547, 51 So. 802, under a statute authorizing the assessment of abutting property for public improvements, which did not expressly subject street railroads to such assessments, it was held that a street railroad operating under an easement or franchise is an abutting property owner in the sense of local assessment laws and has property rights in the street occupied by it which are subject to such local assessments. As was held in the case of City of Chicago v. University of Chicago, 302 Ill. 455, 134 N.E. 723, 725, 23 A.L.R. 244, in which a leasehold interest in sixteenth-section school lands was held to be assessable for benefits derived from a local improvement, "it is the character of the property, as fixed and immovable, receiving substantial benefits from an improvement which fixes the liability, and not the nature of the property, as real estate," or as a chattel real.
The court below so held, and the decree will be affirmed.
Affirmed.