Summary
In Alvis et al. v. Hicks et al., 150 Miss. 306, 116 So. 612, it was held that this exemption applies to property bought in by a municipality at its tax sales.
Summary of this case from Tardo v. SterlingOpinion
No. 27056.
April 2, 1928. Suggestion of Error Overruled May 7, 1928.
1. TAXATION. Statute exempting property belonging to municipality includes lands acquired by enforcement of collection of municipal taxes ( Hemingway's Code 1927, sections 6750, 7011, 7012, 8154).
Code 1906, section 4251 (Hemingway's Code 1927, section 8154), exempting real and personal property belonging to municipality, applies to all real and personal property that municipality is authorized by law to acquire and own, not only to property acquired for municipal purposes under Code 1906, section 3314 (Hemingway's Code 1927, section 6750), and includes lands acquired as result of enforcement of collection of municipal taxes due thereon, and, when municipality acquires its title, any existing lien on property for state and county taxes is thereby removed since Code 1906, sections 3427, 3428 (Hemingway's Code 1927, sections 7011, 7012), have no application to land acquired by municipality where statutory two-year period of redemption has expired.
2. MUNICIPAL CORPORATIONS. Where city council's order approving assessment recited legal notice had been given, it was unnecessary to recite method of publishing.
Where order of city council approving assessment of land and personal property recited that ten days' legal notice had been given as required by law, it was not necessary for council to set out in its orders how notices were published, whether by newspaper, posting, or both.
3. MUNICIPAL CORPORATIONS. Although jurisdictional facts must appear on minutes of council sitting as equalization board, it is unnecessary to set out evidence constituting jurisdictional facts.
Although jurisdiction of council sitting as an equalization board is special and limited and jurisdictional facts must appear on their minutes, it is not necessary to set out all evidence constituting jurisdictional facts.
4. MUNICIPAL CORPORATIONS. City introducing list of lands sold to city for taxes made out prima-facie case that sales to city were valid ( Hemingway's Code 1927, sections 1715, 7012).
In suit to redeem from tax sales, where city, filing cross-bill claiming title to lots through tax sales to it, introduced lists of lands sold to municipality in 1921 and 1922 for taxes of 1920 and 1921, which lists included lots involved, under Code 1906, sections 1983, 3428 (Hemingway's Code 1927, sections 1715, 7012), prima-facie case was made out in favor of city that sales of lots to city were valid.
5. MUNICIPAL CORPORATIONS. Parties claiming city, claiming title to lots through tax sales, violated statute regarding fixing place for tax sales had burden of proving same ( Hemingway's Code 1927, sections 1715, 7008, 7012).
In suit to redeem from tax sales in which city filed cross-bill claiming title to lots by virtue of tax sales to it, burden of proof was on parties claiming that city violated Code 1906, section 3425 (Hemingway's Code 1927, section 7008), by failing to fix place for tax sales as required, to prove same, since under Code 1906, sections 1983, 3428 (Hemingway's Code 1927, sections 1715, 7012), it is to be presumed, unless contrary is shown, that city council designated place at which sales were made, and that otherwise law was complied with in reference to conduct of sales.
6. MUNICIPAL CORPORATIONS. Whether city clerk certified to list, introduced in evidence, of lands, including lots involved, sold to municipality, at top or bottom of page, was immaterial.
Whether city clerk certified to list, introduced in evidence by city claiming title to lots through tax sales to it, of lands, including lots involved, sold to municipality, at top or bottom of page, was immaterial.
7. TAXATION. Where city purchased lands for city taxes in 1921 and 1922, and state purchased same lands for taxes in 1924, parties purchasing from state acquired no title.
Where city purchased land sold for city taxes at sales in 1921 and 1922, and state purchased land for taxes in 1924 after two-year period for redemption provided by statute for persons sui juris had expired, parties purchasing from state acquired no title.
8. TAXATION. City purchasing lands for taxes, after period for redemption expired, acquired title subject to right of owners under disability to redeem.
City purchasing lands at sales for city taxes, after two-year period for redemption provided by statute for persons sui juris had expired, acquired title subject to right of owners under disability of minority and unsoundness of mind to redeem.
APPEAL from chancery court of Hinds county, First district; HON. V.J. STRICKER, Chancellor.
R.L. Bullard, for appellants.
The cross-bill should have been dismissed. The answer to the cross-bill denies that there was any valid city assessment. To establish this it was necessary to show notice before the roll was approved. The approval of the roll is a judicial act performed by a court of special and limited jurisdiction, subject to all the limitations and requirements of such courts. All facts essential to its jurisdiction must affirmatively appear on the face of its record. It cannot establish its jurisdiction by its own judgment for no presumption is indulged in favor of its own judgment with respect to jurisdiction, as of courts of general jurisdiction. Nixon v. Biloxi, 76 Miss. 810, 25 So. 664. But a still more fatal infirmity than this appears; one that cannot be cured. No evidence of a sale to the city was produced, and the clerk testified that none has ever existed "in permanent form." A sale of land for taxes can only be evidenced in the manner fixed by law. The evidence of title on a sale to the state or municipality is an official list of such sales made and certified by the tax collector. Sec. 3428, Code of 1906. The city of Jackson seems not to have kept any list of lands sold to the city, and this was made necessary by law. Shelby v. Burns (Miss.), 114 So. 349 is decisive of this proposition. It is there held, "In a suit to confirm tax title, complainant must introduce tax sale list, signed by the collector or his authorized deputy."
It may be contended that another sale was made to the city in 1922. If so a sufficient answer to that is to say that it was subject to the sale made to the state for delinquent state and county taxes before the time for redemption had expired. This is true under any construction that may be placed on the last sentence of sec. 3428, Code 1906, viz.: "But such title shall be subject to a title acquired under a sale for state and county taxes." This alleged sale to the city, if made, was on May 1, 1922, and the sale to the state was for the state and county tax of the next year, 1923. The city should at least have paid the state and county tax of that year and charged the amount of it upon redemption, or sale of the land, as under sec. 3427, Code 1906, it might have done.
The right of a municipality to tax is subordinate to the right of the state and county. The right to buy at its own tax sale is purely a means of collecting its taxes, and it can hardly be said with any reason that a means of enforcing a city tax rises any higher than the power to levy the tax. If one is subordinate both must be. The city is authorized to pay the state and county taxes on lands "thus acquired by it" and it has not acquired the lands until the period of redemption has expired and its inchoate right has ripened into a title. 37 Cyc. 1355. It cannot be said with any reason that the statute exempting municipal property from state and county taxation had any reference to land bought at tax sale to enforce payment of its taxes. The grant of authority to municipalities to acquire and own property, and it is limited to such municipal uses as are authorized of cities, towns and villages. Sec. 3314, Code of 1906. At the same time was passed sec. 4251, as follows: "The following property, and no other, shall be exempt from taxation, to-wit: All property, real or personal, belonging to this state, or to any county, levy board or municipal corporation thereof." Now what property was referred to? Certainly that which municipalities were granted power to acquire and own "for such purposes." In no sense would land held by the municipality to enforce collection of its taxes be city property. Removing this from any doubt, the last sentence of sec. 3428 was passed declaring: "But such title shall be subject to a title acquired under a sale for state and county taxes," and the last sentence of sec. 3427, which authorized the municipality to pay the state and county tax on "lands thus acquired by it." Construing all these statutes together, as must be done, do they admit of any other interpretation?
The original bill. Is the interest owned by C.W. Hicks, now subject to redemption? Can he redeem it, or can it be redeemed for him? He was the owner but it was his duty to hold and protect it for the interest of the minors. His was the title. His was the duty to pay the tax. His was the duty to redeem it when sold; and his is the liability to those he owed these duties for having neglected them. The right to redeem is purely statutory and the statute must be looked to in order to find out who has the right to redeem. Sec. 4338, Code 1906, provides that, "the owner or any person for him," may redeem. None but the owner or some one for him has the right. Since he was under no disability this right expired with two years. In 37 Cyc. 1386, it is said: "In many states laws permit a redemption from a tax sale to be made by one whose claim of interest in the land is based on an imperfect, incomplete or equitable title." We have no such statute and it is submitted that the right of C.W. Hicks, the trustee, is barred. The remedy of the beneficiaries of his trust is against him. If it is held that the complainants have shown no right to redeem any interest, the bill and cross-bill ought both to be dismissed. If not then the cross-bill should be dismissed and the remainder of the cause remanded for the redemption of such interest as the court finds subject to redemption and a partition of the lands according to the prayer of the bill.
Morse Bryan, for appellee city of Jackson.
There was a compliance of all requirements of the law by the city clerk with reference to the sales. Mr. A.J. Johnson, city clerk, who made the city rolls, introduced a copy of the records and showed a copy of the roll, the page and line and lot number and subdivision and to whom assessed in 1920 and 1921. Mr. Johnson stated that he wrote this record himself; that the records were made under his supervision and in his office; that it is a permanent record and list of every piece of property sold to individuals and to the city of Jackson in regular order, as it appears on the advertising list and tax roll. The pleading discloses the fact that the tax sale made in the county was made in June, 1924, which the title to the city of Jackson would have ripened in May, 1924. The city also had title to the property by tax deed in 1921, which would have ripened in 1923. The ordinance certified that due and legal notice was given. The records appear to be correct in every particular and outside of that, there would be a presumption of the correctness of the actions of the officials unless it was shown that they were incorrect. The appellants herein averred that it was the duty of the city to pay any other tax. There was no proof introduced on this. There is a section of the Code, however, that states that municipalities may pay the state and county taxes on lands and collect it. See sec. 7011, Hemingway's Code 1927. This is not mandatory, however, and especially in this case where the title had ripened and become perfect in the municipality before sale being made to the county. We do not think Shelby v. Boone (Miss.), 114 So. 379, is applicable for the reason that in the instant case the tax collector introduced the original tax sales which were filed by him, and in addition thereto the original deeds which were on file in the city clerk's office and subject to redemption by any person interested desiring to redeem the same.
The property under the tax sale passed to the city of Jackson, and the sale as made to the state was illegal for at that time the title had vested in the municipality. This case, in our opinion, is controlled by Laurel v. Weems, 100 Miss. 335, 56 So. 451, that being the case where the municipality purchased a piece of property against which the tax lien had already accrued. The property was sold for taxes and purchased by Weems who asserted title thereto. The court held that by the municipality having acquired title to the property that it automatically went off of the tax roll.
Lamar F. Easterling, for appellees, C.W. Hicks, et al.
As between the minor heirs of H.L. Hicks and defendant, Mrs. Little Barskdale Hicks, on the one hand, and Alvis, Latimer, and Street, on the other hand, the defendants Alvis, Latimer and Street having failed to prove any title as they had averred in their answer, their claim should have been and was properly cancelled by the court below. It is up to each party under the peculiar aspect of the bill to prove its right to receive the redemption money. The minor heirs of H.L. Hicks offered to pay the requisite amount necessary to redeem. They did not know who to pay it to with safety. So to speak, this amount necessary to redeem the lots became a fund offered to be paid into the chancery court. If Alvis, Latimer and Street acquired a valid sale on June 2, 1924, they became entitled to receive from the court the redemption money for one-half of said lots, but in order to receive this redemption money for one-half of said taxes, damages and costs, it was necessary that they prove to the courts their claim therefor. If the city of Jackson had made no claim to the lots whatsoever and had failed to even answer the bill, that so far as Alvis, Latimer and Street are concerned, their failure to prove title would have enured to the benefit of the complainants and C.W. Hicks who had acquired, as far as the record shows, a valid title to said lots. Alvis, Latimer and Street having failed to offer proof to show their title to receive the redemption money, regardless of every other fact in the case, the said decree as to them is manifestly correct and should be affirmed, regardless of who has the better title, C.W. Hicks, Mattie May Hicks, or the city of Jackson to said property.
The chief errors at law complained of are, first, that complainants' title is not sufficiently deraigned, and, second, that the court erred in allowing amendment to the original bill, and third, in holding that the city had a valid tax title to the land. We think that we have sufficiently demonstrated that the assignment of error addressed to the deficiency of deraignment of title is completely exploded by a mere reading of the bill. Counsel complains of the right of complainants to redeem, but in our opinion no argument is required to show the fallacy of this proposition. If it stands admitted that complainants' ancestor owned the land and that they were minors when the land was sold, and were still minors when the bill was filed, their right to redeem follows, and will be enforced by a court of equity for the protection of the minor. We call the court's attention to Westerfield v. Merchant, 93 Miss. 791, 47 So. 434, where it was held that complainants in a suit to redeem land from a sale on a tax assessment to their ancestor, need not prove title in her; she being the common source of title of the parties. But the averments of title were sufficient, and the answer of these appellants not having denied said averments of title, and the chain of title by adverse possession, the same are taken as true and proof thereof was unnecessary. In other words, on the face of the bill, the parties in the court below under disability were entitled to redeem.
Argued orally by Lamar F. Easterling, for appellees.
The appellees, the minor heirs of H.L. Hicks, filed their bill in the chancery court of the First district of Hinds county, against the appellants, A.H. Alvis, I.L. Latimer, C.C. Street, Lillie Mai Barksdale Hicks, a non compos mentis, and her guardian, and the city of Jackson to redeem from tax sales their undivided interest in certain lots in the city of Jackson, described in the bill. There was a trial on bill, answer and cross-bill of the city of Jackson, answers, and proofs, resulting in a decree granting the prayer of appellees' bill. From that decree, appellants prosecute this appeal.
Appellees, in their bill, undertook to deraign title to the lots involved from the government down to H.L. Hicks, through whom they claim title. They also undertook in their bill to show title in the said H.L. Hicks by conveyances coming down to him through an antecedent grantor of the lots who had acquired title to the lots by adverse possession under claim of title for more than ten years. The bill alleged, in substance, that H.L. Hicks, through whom appellees claimed title to the lots, died intestate in 1913, leaving a widow and four minor children; that at the time of his death he owned a one-half undivided interest in the lots involved; that his widow conveyed her one-fifth undivided interest in the lots to C.W. Hicks "as guardian and trustee" for her minor children; that subsequently one of the children died, and her one-fifth of one-half undivided interest in the lots was inherited by appellees, the other three children and their mother, the latter being the divorced wife of H.L. Hicks, and still living, her interest being one-twentieth of one-half of the undivided interest; that she was insane at the time of the filing of the bill, and had been continuously since the tax sales of the lots, from which tax sales appellees sought to redeem their interest in the lots; that the lots were assessed for state and county taxes for the year 1923, which were not paid, and were sold in 1924 for such unpaid 1923 taxes and purchased by the state; that after the two-year period for redemption provided by statute for persons sui juris had expired, the lots were sold by the state to the appellants; that the lots were situated in the city of Jackson and were assessed for city taxes for the years 1920 and 1921; that the taxes for those years were not paid; that the result was that the lots were sold in 1921 for the city taxes due on them for 1920, and again in 1922 for the city taxes due on them for 1921, at each of which sales they were purchased by the city of Jackson; and that the two-year period provided by statute for redemption by persons sui juris from said tax sales had expired before the bill in this cause was filed.
Appellee, the city of Jackson, answered the bill, making its answer a cross-bill against the other appellees and appellants. In its answer and cross-bill, the city claimed title to the lots involved by virtue of said tax sales to it and sought to cancel the tax title of appellants derived from the sale of the lots to the state, in 1924, for their state and county taxes of 1923, claiming that the lots after they were purchased by the city, and the two-year period provided by the statute for their redemption had expired, were not subject to sale for their state and county taxes. The city alleged in its answer and cross-bill, and the evidence showed without dispute, that at the time of the sale of the lots in 1924 for their state and county taxes of 1923, the two-year period for their redemption from the city sales, provided by statute, had expired. In its final decree, the court held that the appellee, the city of Jackson, by its tax sales of 1921 and 1922, and the purchase by it, at such sales, of the lots involved, acquired title thereto, subject to the right of the appellees C.W. Hicks, Jr., H.L. Hicks, and Willena Mae Hicks, minors, through their guardians, C.H. Hicks, and Mattie Mae Hicks, and Mrs. Lillie Mai Barksdale Hicks, non compos mentis, to redeem, and canceled appellants' title derived from the state under the sale of the lots in 1924 for their state and county taxes of 1923.
It is contended by appellees, and seems to be conceded by appellants, that if appellees sufficiently deraigned their title to the interest claimed by them in the lots involved, they are, on account of their disabilities, entitled to redeem such interest from either the appellants or the city of Jackson; and that the question as to which of the two is entitled to the amount necessary to redeem depends upon who acquired the superior title at the tax sales above referred to — the city or the state.
We are of the opinion that appellees' bill sufficiently deraigned title to a one-half interest in the lots involved in H.L. Hicks, through whom they claimed title.
At the time of the sales of the lots, in 1924, for their state and county taxes for 1923, the statutory two-year period for their redemption by persons sui juris from their sales of 1921 and 1922, for city taxes, had expired. Appellees' position is that thereby the lots had become city property of the city of Jackson, and, under subdivision (e) of section 4251, Code 1906 (section 8154, Hemingway's 1927 Code), were exempt from sale for their state and county taxes. The statute provides among other things, that all property, real or personal, belonging to a municipality shall be exempt from taxation. Appellants contend that the statute exempting real and personal property owned by a municipality has no application to real estate acquired by a municipality in the process of enforcing the collection of the municipal taxes due thereon; that the exemption only applies to the real estate acquired by a municipality for use for municipal purposes. Appellants cite, as bearing out the contention, the second paragraph of section 3314, Code 1906 (section 6750, Hemingway's 1927 Code), providing what property a municipality may own, which follows:
"To purchase and hold real estate and personal property; to purchase and hold real estate, within the corporate limits, for all proper municipal purposes, and for parks, cemeteries, hospitals, schoolhouse, houses of correction, waterworks, electric lights, and sewers. And without the corporate limits may be owned under purchase, grant, or devise, heretofore or hereafter made, to be used for such purposes, and for pesthouses."
Also the last sentence of section 3428, Code 1906 (Hemingway's 1927 Code, section 7012):
"But such title shall be subject to a title acquired under a sale for state and county taxes."
And the last sentence of section 3427, Code 1906 (Hemingway's 1927 Code, section 7011), which is as follows:
"The board shall be authorized to pay the state and county taxes on lands thus acquired by it, and to collect the money thus paid, with the same damages and interest allowed individuals in similar cases under the general revenue laws of the state thereon from the date of such payment, upon the redemption of the lands from the municipal sale."
The language of the exemption statute could not be broader or more comprehensive. It simply provides that all property, real or personal, belonging to a municipality shall be exempt from taxation. The two sentences quoted above of sections 3427 and 3428, Code 1906 (sections 7011 and 7012, Hemingway's 1927 Code), have no application to land acquired by a municipality where the statutory two-year period of redemption has expired. It is only while the tax title of the municipality remains inchoate that those provisions have any application. They apply alone to the two-year redemption period. It was held in the case of City of Lawrel v. Weems, 100 Miss. 335, 56 So. 451, that when a municipality acquired title to land with state and county taxes at the time a lien thereon, that ipso facto such lien was released. We are of the opinion, therefore, that the statute exempting the real and personal property belonging to a municipality applies to all real and personal property that the municipality is authorized by law to acquire and own, including lands acquired by it as a result of the enforcement of the collection of municipal taxes due thereon; and that when it acquires its title, any existing lien on the property for state and county taxes is thereby removed.
Appellants contend that the assessment of the lots involved for municipal taxes, for the payment of which they were sold to the city of Jackson, was void, because the taxpayers of the municipality were not legally notified of the equalization meetings of the municipal authorities at which the assessed values of the lands within the municipal limits were fixed for taxation. The assessments, under which the lots involved were sold, were those of 1920 and 1921. The order of the city council of the city of Jackson approving the assessment of the real and personal property of the city for 1920 was in this language:
"Be it Ordained by the Council of the City of Jackson:
"Section 1. That the real and personal assessment roll filed by the city assessor, J.W. Langley, on the 3d day of August, 1920, and which has been equalized and examined by this council after giving ten days' legal notice as required by law, be and the same is hereby approved and adopted as the real and personal assessment for the purpose of taxation for the year 1920 for the city of Jackson.
"Sec. 2. That this ordinance shall take effect and be in force as provided by law."
The order of the city council approving the assessment roll of 1921 was in substantially the same language as that approving the assessment of 1920, except, of course, as to the year of the assessment under consideration. Appellants argue that this notice to the taxpayers were jurisdictional; that without the giving of it, as required by law, the assessment would be void — and that is true. Appellants argue further that the recital in the two orders that ten days' legal notice had been given, as required by law, was insufficient; that the orders should have set out the manner of the giving of notice, so that it could be determined from the face of the orders whether or not the law had been complied with in that respect. We do not think appellants' contention is well founded. In each of the orders the city council adjudicated the fact that the law had been complied with, and that ten days' notice had been given, as required by law, of the equalization meetings of the city council. It was not necessary for the council to set out in its orders how the notices were published — whether by newspaper, posting, or both. Although the jurisdiction of a council sitting as an equalization board is special and limited, and the jurisdictional facts must appear on their minutes, that does not mean that in their minutes it is necessary for them to set out all the evidence constituting the jurisdictional facts.
No order, nor ordinance, of the city council of Jackson was introduced in evidence by any of the parties fixing the place within the corporate limits for tax sales, as required by section 3425, Code 1906 (Hemingway's 1927 Code, section 7008). Appellants contend that the burden of proving such an order or ordinance rested upon appellee, the city of Jackson, to sustain its cross-bill. It was held in Nixon v. Biloxi, 76 Miss. 810, 25 So. 664, that a municipal tax sale was invalid when the municipal authorities had failed to designate a place for making such sales, as required by the statute. Section 1983, Code 1906 (Hemingway's 1927 Code, section 1715), provides as follows:
"A conveyance made by a tax collector to an individual purchaser of land at a sale for taxes, and the list of lands sold to the state at such sale, shall be prima-facie evidence that the assessment and sale of the land were legal and valid."
Section 3428, Code 1906 (Hemingway's 1927 Code, section 7012), reads as follows:
"The deeds of the tax collector to individuals, and the list of lands sold to the municipality, which shall be made as required to be made by the state and county collector, shall be filed within ten days after the tax sale, with the municipal clerk; and each shall have the same force and effect, and confer the same right and entitled to the same remedies, as deeds and list made for delinquent taxes by the state and county tax collector. But such title shall be subject to a title acquired under a sale for state and county taxes."
We think it clear that the latter section quoted applies the former to the municipal tax sales, and, therefore, under the provisions of the former, when the city introduced the lists of lands sold to the municipality in 1921 and 1922 for their taxes of 1920 and 1921, which lists included the lots here involved, a prima-facie case was made out in favor of the city that the sales of these lots to the city were valid. Under the statute, it is to be presumed, unless the contrary is shown, that the city council designated the place at which the sales were made, and that otherwise the law was complied with in reference to the conduct of such sales. Wheeler v. Ligon, 62 Miss. 560; Mitchell v. Tubb, 107 Miss. 221, 65 So. 216. We are of the opinion, therefore, that the burden was on appellants to show that the city violated the statute, if it was violated, in failing to fix a place in the municipality for the said tax sales.
But the appellant contends that the city failed to introduce in evidence valid lists of lands, including the lots involved sold to the municipality in 1921 and 1922, and therefore, under the authority of Shelby v. Burns (Miss.), 114 So. 349, the city failed to make out its case. It was held in that case that, in a suit to confirm a tax title, complainant must introduce, in evidence, the sale list of lands and such list must be signed by the tax collector, or his legal deputy; otherwise, complainant would not be entitled to have his tax title confirmed. The city, in the present case, did introduce in evidence what it claimed to be the list of lands, including the lots involved, sold to the city in 1921 and 1922 for their taxes of 1920 and 1921. It is difficult to tell from the record just how these lists were made out and certified to, but, as we understand the testimony of the city clerk, Johnson, there were such lists which were properly signed and certified to. Whether he certified to the list at the top or bottom of the page, we think, is immaterial. In giving his testimony, he read into the record what the lists showed, and there appears to have been no difficulty in ascertaining therefrom that the lots involved were among other lands sold to the city in 1921 and 1922 for the city taxes thereon of 1920 and 1921.
We agree with the trial court that appellants acquired no title to the lots involved by their purchase from the state, but that the city of Jackson acquired title by its purchase at its tax sales of 1921 and 1922, subject to the right of the owners under disability of minority and unsoundness of mind in redeem.
Affirmed.