Opinion
No. 36224.
December 9, 1946. Suggestion of Error Overruled January 13, 1947.
1. APPEAL AND ERROR.
Finding of fact by chancellor will be sustained on appeal if there is substantial evidence to support it.
2. TAXATION.
Evidence that land, platted as a cemetery and in which there were a few graves, was rented for farming purposes justified finding that, at time of assessment and sale of property for taxes, was not then being used exclusively for burial purposes and accordingly was properly subject to taxation (Code 1942, sec. 9697).
3. TAXATION.
Where cemetery at time of assessment and sale for delinquent taxes was not being used exclusively for burial purposes and evidence would support conclusion that the part thereof not actually occupied as graves had been abandoned as a cemetery by nonuser, patent to city from State vested in city all right, title and interest of record owner and his predecessors in title (Code 1942, sec. 9697).
4. TAXATION.
Where cemetery was sold to State for taxes assessed when cemetery was not being used exclusively for cemetery purposes and a patent issued to city, conveyance did not affect the lots actually occupied as graves, since such lots were not taxable, and city could not disturb such graves or the right of the kin of persons buried there to visit and care for such graves (Code 1942, sec. 9697).
5. TAXATION.
Where cemetery was sold to State for taxes assessed during period when cemetery was not used exclusively for cemetery purposes, city, by virtue of its purchase from State, acquired unrestricted right of ingress and egress thereto across the openings, paths and approaches abutting the property needed for access thereto to utilize it for burial purposes, which alleys, ways and approaches were shown upon the plat.
6. CEMETERIES.
The plat of a cemetery is, in a manner, a muniment of title to the property shown thereon.
APPEAL from the chancery court of Hinds county. HON. V.J. STRICKER, Chancellor.
Howie, Howie McGowan, of Jackson, for apellants.
The property was exempt from taxation.
Lay v. State, 12 Ind. App. 362, 39 N.E. 768; Metairie Cemetery Ass'n v. Board of Assessors, 37 La. Ann. 32; Peterson v. Stolz (Tex.), 269 S.W. 113; Evergreen Cemetery Ass'n v. Beecher, 53 Conn. 551, 5 A. 353; People ex rel. Buffalo Burial Park Ass'n v. Stillwell, 190 N.Y. 284, 83 N.E. 56; United Cemetery Ass'n v. Strother, 332 Mo. 971-977, 61 S.W.2d 907, 90 A.L.R. 438; 61 C.J., Taxation, Secs. 573, 574; 10 Am. Jur. 487, Sec. 2.
The foreclosure of the deed of trust did not affect the exemption of said cemetery.
Morgan v. Collins School House, 160 Miss. 321, 133 So. 675; Alosi v. Jones, 234 Ala. 391, 174 So. 774; United Cemetery Ass'n v. Strother, supra; Kerlin v. Ramage, 200 Ala. 428, 76 So. 360, L.R.A. 1918A, 142.
The incorporation and operation of the cemetery was in the utmost good faith.
Woodlawn Cemetery v. Inhabitants of Everett, 118 Mass. 354; Rose Hill Cemetery Co. v. Kern, 147 Ill. 483, 35 N.E. 240; National Cemeteries Ass'n v. Benson (Mo.), 129 S.W.2d 842, 122 A.L.R. 893.
The tax sale was void.
Federal Land Bank of New Orleans v. Cox, 183 Miss. 250, 183 So. 482; Wildberger v. Shaw, 84 Miss. 442, 36 So. 539; Creegan v. Hyman, 93 Miss. 481, 46 So. 952; J.M. Jones Lumber Co. v. Homochitto Development Co. et al., 163 Miss. 305, 141 So. 589; Code of 1942, Secs 9744, 9745.
The action of the board of supervisors in matters of assessment is only conclusive as to mere irregularities and matters of fact resting wholly in pais; such, for instance, as excessive valuation, misdescriptions, listing of property to the wrong person, and the like. It is not final as to claim of exemption under statutory or constitutional provisions. It was not the intention of the legislature to submit such questions as these, without review, to the exclusive decision of a board of supervisors.
Horne v. Green, 52 Miss. 452.
See also City of Meridian v. Phillips, 65 Miss. 362, 4 So. 119; Mobile O.R. Co. v. Moseley, 52 Miss. 127; Yazoo M.V.R. Co. v. Adams, 81 Miss. 90, 32 So. 937; McHenry Baptist Church v. McNeal, 86 Miss. 22, 38 So. 195; City of Laurel v. Weems, 100 Miss. 335, 56 So. 451; Davis v. City of Biloxi, 183 Miss. 340, 184 So. 76; Code of 1942, Sec. 9697 (a), (e).
Harold Cox, of Jackson, for appellee.
The assessment by the board of supervisors of the property in suit for 1941 ad valorem taxes finally and conclusively established the liability of such property for said tax and said assessment is not subject to collateral attack.
Campbell v. Wilson, 194 Miss. 746, 13 So.2d 624; Miller v. Citizens' Nat. Bank, 144 Miss. 533, 110 So. 439; Reed v. Norman-Breaux Lumber Co., 149 Miss. 395, 115 So. 724; Yazoo Delta Lumber Co. v. Eastland, 104 Miss. 553, 61 So. 597; North American Old Roman Catholic Diocese v. Havens, 164 Miss. 119, 144 So. 473; Grenada Bank v. Town of Moorhead, 160 Miss. 163, 133 So. 666; Schwartz Bros. v. Stafford, 166 Miss. 397, 148 So. 794; Neely v. Craig, 162 Miss. 712, 139 So. 835; Yazoo M.V.R. Co. v. Adams, 77 Miss. 764, 25 So. 355; Adams County v. Bank of Commerce in Liquidation, 157 Miss. 249, 128 So. 110; Darnell v. Johnston, 109 Miss. 570, 68 So. 780; Warren County v. Mississippi River Ferry Co., 170 Miss. 183, 154 So. 349; Watkins v. Mississippi State Board of Pharmacy, 170 Miss. 26, 154 So. 277; Riley v. Gaddis, 146 Miss. 44, 111 So. 739; Stanley v. Board of Supervisors, 121 U.S. 535, 7 S.Ct. 1234; Code of 1930, Secs. 62, 1578, 3108, 3122, 3166; Code of 1942, Sec. 9788, 9803, 9815, 9974; 51 Am. Jur. 505, Sec. 499, p. 698, Sec. 770; 61 C.J. 738, Sec. 920.
The property in suit was not used exclusively for cemetery purposes and was assessable for 1941 county and state ad valorem taxes.
Reliance Investment Co. v. Johnson, 188 Miss. 227, 193 So. 630; Phoenix Ins. Co. v. Smith, 95 Miss. 347, 48 So. 1020; Griswold v. Simmons, 50 Miss. 137; Code of 1930, Sec. 380.
Effect of failure to exclude grave itself from assessment on validity of tax sale of the entire property.
See Enochs v. City of Jackson, 144 Miss. 360, 109 So. 864; Lewis v. Vicksburg M.R. Co., 67 Miss. 82, 6 So. 773; Congregational Church v. Wright (Colo.), 131 P.2d 419; Application of Loomis Sanatorium, 48 N.Y.S.2d 852; East Cleveland Post No. 1500 v. Board of Tax Appeals (Ohio), 41 N.E.2d 242; Glen Oak Cemetery Co. v. Board of Appeals of Cook County (Ill.), 192 N.E. 673, 674.
Propriety of decree of trial court awarding appellee right of ingress and egress to the property in suit over walks and paths through subdivision.
See Witherspoon v. City of Meridian, 69 Miss. 288, 13 So. 843; Panhandle Oil Co. v. Trigg, 148 Miss. 306, 114 So. 625; Greenwood Lodge v. Hyman, 180 Miss. 198, 177 So. 43; Loggans v. Love, 183 Miss. 97, 183 So. 389.
Argued orally by M.M. McGowan, for appellant, and by W.H. Cox, for appellee.
J.M. Evans filed a bill in this cause asking the court to hold invalid and set aside a tax sale to the State of Mississippi made April 6, 1942, and a patent from the State to the City of Jackson, Mississippi, dated July 9, 1945, to approximately ten acres of land located in the southwest portion of said City and known as the Dunbar Cemetery property, and to confirm his title to said property. Five persons joined him as complainants in the bill, four of these having a brother, and a fifth a son, buried in said grounds. The City made its answer a cross bill and prayed for confirmation in it of title to said property. The chancellor dismissed the bill and sustained the cross bill.
The primary question involved on the appeal is whether the land, at the time of its assessment and sale for taxes, was subject to taxation, and that, in turn, depends on whether it was then being used exclusively for burial purposes.
Section 9697, Code 1942, exempts from taxation "All cemeteries used exclusively for burial purposes." The chancellor found as a fact that the land was not being used exclusively for burial purposes when assessed and sold for taxes and that it was subject to assessment and sale therefor. The question now is whether he had substantial evidence before him to support such finding of fact. This requires us to summarize the evidence.
The course and manner of transfer and sale of the property have a bearing upon that question. We will detail that.
On August 3, 1929, C.E. Maley conveyed to R.B. Thomas, Jr., and H.G. Seitz, twenty acres of land, which included the ten acres under consideration. Thomas and Seitz, on the same day, executed to Maley a deed of trust on the land to secure the entire purchase price, payable in three annual installments, evidenced by three promissory notes, the last installment being due August 3, 1932, one J.O.S. Sanders being the trustee.
On August 29, 1929, a charter was granted by the State to Thomas and Seitz and one H.S. Gerson to acquire, own, use and maintain property for cemetery purposes and to operate the business of an undertaker.
On September 5, 1929, Thomas and Seitz conveyed to Gerson a one-third interest in said land, Gerson assuming one-third of the debt thereon.
On the same day these three parties conveyed the land to the Dunbar Cemetery Company, Inc.
On September 11, 1929, the property in controversy was platted into lots and blocks as the Dunbar Cemetery property, and on September 21, 1929, that plat was duly recorded in Hinds County, in which the property was located.
On September 20, 1929, Dunbar Cemetery Company, Inc., conveyed to the City of Jackson approximately half of the original twenty acres it acquired, the ten acres sold to the City being adjacent to the property retained and here in controversy. The City acquired its property as a potter's field for the burial of members of the negro race, and it has since been, and is now being, used exclusively as such.
On September 20, 1929, C.E. Maley, the mortgagee, released from his trust deed the property so purchased by the City of Jackson.
On March 27, 1935, the Maley trust deed was foreclosed and the property was purchased by C.E. Maley, Jr.
April 23, 1935, C.E. Maley, Jr., conveyed the property to G.C. Thornton, trustee, but the instrument does not state for whom or for what purpose Thornton was made trustee.
April 30, 1935, Thornton, trustee, conveyed to Mary M. Peaster.
On June 29, 1938, in litigation between one Saul Cooper and Thornton, trustee, the Chancery Court of Hinds County decreed that Cooper was the owner of a one-third interest in the land.
On May 5, 1945, Mary M. Peaster executed a quitclaim deed to her interest in the property to Walter A. Scott, a part of the consideration being the assumption by Scott of ". . . all ad valorem taxes, State, County and City, for the fiscal year 1945 and all previous years taxes that may be delinquent and all assessments of every kind that may be due."
On June 18, 1945, Saul Cooper executed a quitclaim deed to Walter A. Scott, a part of the consideration being the assumption by the grantee of taxes as in the Peaster deed.
On July 31, 1945, Walter A. Scott executed a special warranty deed to J.M. Evans.
The property was assessed for state and county taxes for the years 1940 and 1941. On April 6, 1942, it sold for nonpayment of state and county taxes. It had also been assessed for municipal taxes and in April 1941 sold for nonpayment of such taxes to Virgil Howie, but it seems to be conceded that the sale to the State, if valid, superseded the municipal sale — at least, there is no contest of that question involved in this case.
On July 9, 1945, before Scott conveyed to Evans, the State issued a patent to the City of Jackson.
The testimony of one Banks, an undertaker, also shows that prior to the foreclosure of the Maley trust deed on March 27, 1935, four members of the negro race had been buried on this land; that another was so buried July 11, 1935, and another, April 13, 1938. Another undertaker testified his firm had buried there "one or two or three or four." He did not fix the time, but his evidence indicates it was before 1935. There are over one thousand lots on the plat. Banks testified that the depression put a stop to the sale of lots in 1930. However, no witness testified to the location of any particular person's grave. They appear to be scattered, and, indeed, there is some uncertainty whether some of these were buried in Dunbar or in the municipal potter's field. There are no tombstones, monuments or permanent markers. All graves are about or below the level of the ground. They are grown up with grass, weeds, and briars. It appears that the organizers of this project came to Mississippi from Texas and they departed for parts unknown after they realized they were going to lose the property under the foreclosure sale. It is further shown by the evidence that the entire property was rented out for farming purposes for the years 1940 to and including 1945 at a yearly rental of $40.00. The rent was paid either to Mr. Maley or his mother. During those years the land was planted and cultivated to cotton, corn, potatoes, and sorghum, — "straight farming," as one tenant expressed it, except that the tenant ploughed around "those two or three places" where he could tell there were graves.
From this it is evident, we think, the chancellor had ample proof to support his finding that at the time of the assessment and sale of this property for taxes, it was not then being used exclusively for burial purposes. Indeed, the evidence would support the conclusion that the part thereof not actually occupied as graves had been abandoned as a cemetery by nonuser, with no evident intent on the part of the original founders, or their subsequent grantees, to use or maintain it as a burial ground in the future.
Under these circumstances, the patent to the City vestin it all right, title and interest of appellant Evans and his predecessors in title to the said property, and the chancellor was correct in so decreeing.
However, the question arises as to the effect of this upon the actual graves, if they can be located, and the rights incidental thereto. There is oral evidence in the record of the purchase of two lots. No deed, or other writing, to any lot is shown to have been executed; therefore, we cannot say what interest, or right, the grantees have in these lots. But whatever right, title or interest did vest in said lots by virtue of this arrangement it was not taxable. The resting place of the dead is holy ground, and the sentiment of all civilized peoples revolts at the thought of the hand of the tax-gatherer upon the sepulcher. Their sleep is not to be disturbed, nor the right of their kin to visit and care for their last resting place. See Morgan v. Collins School House, 160 Miss. 321, 133 So. 675.
Only one of the five kinsmen joining in the bill testified, and she said her only interest in the property was to have it properly maintained as a burial ground. Fortunately, in this case that is to be done. Both the resolution of the City authorizing the application for the patent and the patent itself recite that the purpose of the municipality in acquiring this property was to use, preserve, and maintain it as a burial ground for members of the negro race. The Mayor and one of the City Commissioners testified it was greatly needed for that purpose and it would be so used, and the learned chancellor set this out in his decree confirming the title of the City. On the other hand, there is no showing in this record that Mr. Evans intends doing that. He did not testify.
The chancellor decreed that the City, by virtue of its purchase of the described property, also acquired full and unrestricted right of ingress and egress thereto along and across the openings, paths, and approaches abutting the property needed for access thereto to utilize it for burial purposes. These alleys, ways and approaches are shown upon the plat. They are laid out with reference to access to the various lots and blocks described on the plat. The property was assessed according to this plat. Alone, these avenues, ways and approaches would have no appreciable value. They are necessary and essential to the proper use of the property. The plat is in a manner a muniment of title to the property shown thereon. We think the chancellor was correct. See Loggans v. Love, 183 Miss. 97, 183 So. 389.
Affirmed.
Sydney Smith, C.J., did not participate in this decision.