Summary
In Wilkinson, the appellant contended that a tax sale was void because the incorrect name of the land owner appeared in the advertisement of sale.
Summary of this case from Christiana Tr. v. CiotaOpinion
No. 37158.
November 28, 1949.
1. Taxation — assessment roll — failure of assessor to attach his affidavit.
In a suit to cancel a tax sale because of the alleged failure of the assessor to attach his affidavit to the assessment roll, the burden of proving that allegation is on the complainant.
2. Taxation — assessment roll — failure of assessor to attach his affidavit — approval of roll.
When the record shows that the assessment roll has been duly filed with and approved by the board of supervisors, the failure of the assessor to attach his affidavit to the roll will not invalidate an assessment. Sec. 9797 Code 1942.
3. Taxation — advertisement of sale — owner incorrectly named.
It is not necessary to the validity of an assessment and sale for taxes that it shall be assessed to the true owner or so advertised; hence an advertisement of sale giving the wrong initials of the owner will not invalidate the sale.
4. Public lands — forfeited tax land patent — fraud of patentee.
In a suit to cancel a forfeited tax land patent, only the State may raise the question that the patent was procured by the fraud of the patentee.
5. Tax deed — description — burden of proof.
In a suit to set aside a tax sale for want of a legal description, when the forfeited tax land patent issued as a result of the sale contains a legal description the burden was on the complainant to show that there was an invalid description in the assessment roll and list of lands sold to the state, and in the absence of such a showing the description in the patent will prevail.
6. Pleading — exhibits.
Where a pleading purports to exhibit copies of writings, the copies should be actually exhibited.
7. Appeal — court reporter's transcript — duty of counsel.
It is the duty of counsel representing litigants on appeal to see that the transcript of the court reporter correctly reflects the evidence introduced on the trial. Sec. 1641 Code 1942.
Headnotes as approved by Roberds, J.
APPEAL from the chancery court of Franklin County; R.W. CUTRER, Chancellor.
Roach Jones, and Satterfield, Ewing Hedgepeth, for appellant.
I. The tax sale in this case is void and conveyed no title whatsoever to the state or to its patentee or those claiming under such patentee.
(1) The tax sale was void because the assessment description was not definite enough to identify the land, and the same is true of the identical description which was also employed in the advertisement of sale, the tax collector's list of lands sold at the tax sale, and in the record of such tax sale in the office of the chancery clerk. Sections 9773, 9774, 9775, Code 1942; Carr v. Barton, 173 Miss. 662, 162 So. 172; Jefferson v. Walker, 199 Miss. 705, 24 So.2d 343, 26 So.2d 239; Federal Land Bank of New Orleans v. Cox, 183 Miss. 250, 183 So. 482; Miller v. Fulliwiley, 192 Miss. 846, 7 So.2d 799; Cuevas v. Cuevas, 145 Miss. 456, 110 So. 865; Roebuck v. Bailey et al., 176 Miss. 234, 166 So. 358; Hatchett v. Thompson, 174 Miss. 502, 165 So. 110; Patton on Titles, Sec. 109, pp. 360-361; Turner v. Hand County, 11 S.D. 348, 77 N.W. 589; Powers v. Larabee, 2 N.D. 141, 49 N.W. 724; Power v. Bowdle, 3 N.D. 107, 54 N.W. 404, 21 LRA 328; State Finance Company v. Mulberger, 16 N.D. 214, 112 N.W. 986; State Finance Company v. Trimble, 16 N.D. 199, 112 N.W. 984; Wright v. Jones, 23 N.D. 191, 135 N.W. 1120; Noble v. Watrous, 84 Or. 418, 163 P. 310, 165 P. 349; Stokes v. Allen, 15 S.D. 421, 89 N.W. 1023; Moran v. Thomas, 19 S.D. 469, 104 N.W. 212; Wilson v. Jarron, 23 Idaho 563, 131 P. 12; Keith v. Hayden, 26 Minn. 212, 2 N.W. 495.
(2) The tax sale was void because of the failure of the tax assessor to make the affidavit, and append it to the 1934 assessment roll, required by Section 3161, Mississippi Code of 1930 (Section 9785, Mississippi Code of 1942. Section 3161, Code 1930; Gully v. Sowell, 169 Miss. 617, 153 So. 523; State v. School Board, 181 Miss. 818, 181 So. 313; State v. State Highway Commission, 195 Miss. 657, 13 So.2d 614; Words and Phrases 39 (Permanent Ed.), p. 91 et seq.; Secs. 9771, 9797, Code 1942; Sec. 14, Constitution of 1890; 51 Am. Jur., page 634.
(3) The tax sale was void because the name of the owner of the land incorrectly appeared in the advertisement of sale. Chapter 193, Laws of 1934; Styles v. Weir, 26 Miss. 187; Castillo v. McConnico, 168 U.S. 674, 42 L.Ed. 622, 18 S.Ct. 229; 51 Am. Jur. pp. 506-907.
II. Even if the tax sale was valid, the patentee of the state, P.F. Causey, received no title to the land from the state because he practiced fraud upon the state in obtaining such patent and obtained such patent for a grossly inadequate consideration in contravention of the Constitution of Mississippi. Section 95, Miss. Constitution of 1890; Streeter v. State, 180 Miss. 31, 177 So. 54; State v. Adams, 185 Miss. 606, 188 So. 551; State v. Tate, 188 Miss. 865, 196 So. 755.
Cowart Hewitt, and McGehee McGehee and John E. Stone, Assistant Attorney General, for appellees.
The tax sale in this case is valid and conveyed a good and valid title to the State of Mississippi, which title it subsequently conveyed to its patentee through whom appellees claim.
(1) The assessment and sale of land for taxes under the description of "SW of SE, Section 17, Township 5 North, Range 4 East, 40 acres" is valid. Federal Land Bank of New Orleans v. Cox, 183 Miss. 250, 183 So. 482; Miller v. Fulliwiley, 192 Miss. 846, 7 So.2d 799; Sec. 3148, Code 1930 (Sec. 9772, Code 1942); Sec. 3149 Code 1930 (Sec. 9773 Code 1942).
(2) Failure of tax assessor to make and append statutory affidavit to assessment roll does not invalidate a tax sale. Sec. 3172, Code 1930 (Sec. 9797 Code 1942), Sec. 3161 Code 1930 (Sec. 9785 Code 1942); State ex rel. Attorney General v. County School Board of Quitman County, 181 Miss. 818, 181 So. 313; James Chesnut, et al. v. Eliza Elliott, 61 Miss. 569.
(3) An error in the spelling of a land owner's name in advertisement of the sale for taxes will not affect the validity of the sale. Chapter 199, Laws of 1934 (Sec. 3120 Code 1930, Sec. 9744 Code 1942); 51 Am. Jur. 903, Sec. 1033; Carr v. Barton, et al., 173 Miss. 662, 162 So. 172.
II. The validity vel non of a patent from the state can be challenged under the statutes of Mississippi only in a proceeding instituted for such purpose by the State Land Commissioner. Sec. 6019 Code 1930 (Sec. 4101 Code 1942); Sec. 6020 Code 1930 (Sec. 4102 Code 1942); Patterson v. State, 177 Miss. 227, 170 So. 645; Reliance Investment Co. v. Johnson, 188 Miss. 227, 193 So. 630; Jones v. Russell, 187 Miss. 834, 194 So. 290; Streeter v. State, 180 Miss. 31, 177 So. 54; State v. Adams, 185 Miss. 606, 188 So. 551; State v. Tate, 188 Miss. 865, 196 So. 755.
Wilkinson, who was complainant below, was the owner of the forty acres of land involved in this litigation when the land sold to the State of Mississippi the first Monday in April, 1935, for delinquent taxes for the year 1934. Appellees, who were respondents to the bill, are the purchaser from the State and those claiming through such purchaser. Wilkinson sought to set aside the sale and the patent and the subsequent conveyances on the grounds (1) the assessor failed to attach to the roll his affidavit as required by Section 9785, Mississippi Code 1942; (2) the advertisement of the sale did not carry the correct initials of the owner; (3) that the patentee, Causey, practiced a fraud upon the State when he procured the patent, and (4) the description upon the assessment roll was insufficient to vest title in a purchaser at the tax sale. The Chancellor dismissed the bill.
(Hn 1) As to the lack of affidavit of the assessor, it would be enough to say that the burden was upon complainant to show that fact, and that it is not shown with any degree of certainty. However, (Hn 2) Section 9797, said Code, provides that failure of the assessor to attach to the roll his certificate and affidavit "shall not affect the validity of the assessment if approved by the board of supervisors." The record discloses the roll was duly filed with and approved by the supervisors.
(Hn 3) The advertisement of the sale of the lands erroneously gave Wilkinson's initials as K.L. instead of R.L. Section 9744, said Code, provides it shall not be necessary to the validity of an assessment or sale of land for taxes that it be assessed to the true owner. And if there be a legal discription it may be assessed to an unknown owner or to any person not the owner. Carr v. Barton, 173 Miss. 662, 162 So. 172.
(Hn 4) As to the alleged fraud of patentee, this Court has held that the State alone can raise that question. Jones v. Russell, 187 Miss. 827, 834, 194 So. 290; Reliance Investment Co. v. Johnson, 188 Miss. 227, 193 So. 630, 194 So. 749. (Hn 5) As to the description, this Court cannot say the Chancellor was in error in holding the description legal, for the reason this record contains no proof of the exact description on the assessment roll or in the list of lands sold to the state which the collector filed with the chancery clerk.
The bill purports to incorporate into itself five exhibits, one of which being a copy of the collector's list, but no exhibit whatever appears in the record. Nor is there any proof of the contents of the exhibits except the patent and application therefor. The patent discloses a legal description of the land. The burden was upon complainant to show an invalid description. There being no evidence of the exact description upon the roll and the list, we, of course, cannot say the description was insufficient to support a legal sale, nor can we adjudge the Chancellor in error in holding it sufficient. Even the attorneys in their briefs are not in accord as to the exact description.
It may serve a useful purpose to here observe that (Hn 6) where pleading purports to exhibit copies of writings the copies should be actually exhibited (Griffith's Mississippi Chancery Practice, Sec. 193) and that (Hn 7) it is the duty of counsel representing litigants on appeals to this court to see that transcribed notes of the court reporter correctly reflect the evidence introduced upon the trial. Section 1641, Mississippi Code 1942.
Affirmed.