Opinion
No. 32754.
May 24, 1937. Suggestion of Error Overruled June 7, 1937.
1. EQUITY.
When original bill is amended by interlineation, and answer has already denied matter inserted by interlineation, it is unnecessary to draw an additional answer or to repeat by interlineation in original answer what is already therein contained.
2. TAXATION.
In suit to confirm tax title, where copy of order of board of supervisors to sell at other than regular tax sale, attached to bill, was not certified, answer denied entering of order, and complainant failed to introduce order, complainant failed to make case supporting judgment in his favor.
3. CONTEMPT.
The making of false affidavits to pleadings which parties should have known were untrue, which results in impeding or obstructing justice, is a contempt.
4. TAXATION.
A statute providing for continuance of special municipal benefit assessment lien after sale of land subject to lien to the state and resale is within power of Legislature, which has entire control of sale of state lands (Laws 1936, chapter 174, section 17).
5. TAXATION.
A statute providing for continuance of special municipal benefit assessment lien after sale of land subject to lien to the state and resale would apply to resale, after statute's adoption, of land purchased by state prior thereto (Laws 1936, chapter 174, section 17).
6. APPEAL AND ERROR.
The Supreme Court would not consider issue raised by pleadings where no proof was made thereon and issue was not considered by chancellor.
APPEAL from the chancery court of Harrison county. HON. D.M. RUSSELL, Chancellor.
J.D. Stennis, Jr., of Biloxi, for appellant.
On the first assignment of error, that is, the error of the court in overruling appellant's motion to strike the bill of complaint as amended by interlineation, we submit that the order of the court allowing the amendment sustained the demurrer attached to the original answer and cross-bill.
When this motion to dismiss was filed the thirty days allowed by the order sustaining this demurrer for the amendment of the bill of complaint had lapsed. Some of the objections raised by the demurrer had been attempted to be corrected by interlineation. The order did not specify that the amendment should be by interlineation. The amendments were material amendments, and, therefore, should have been made by the filing of a new bill.
We submit that it was manifest error on the part of the trial court in admitting in evidence what purported to be a list of lands sold by the sheriff and tax collector of Harrison County, Mississippi, on September 19, 1932, to the State of Mississippi, over the objection of appellant where the list was not properly identified, where it was not shown at the time and for that matter was never shown by any record or testimony offered in evidence that there had been a failure on the part of the sheriff and tax collector to sell property, including the property here involved, on the first Monday in April, 1932, for the taxes due thereon for the year 1931, when said time is fixed by statute, Sections 3247 and 3249 of the Mississippi Code of 1930, as the only time that a legal sale could have possibly been made, without a proper showing of the failure of the tax collector to make sale at said time and a subsequent timely valid petition by the tax collector to the board of supervisors, and order by said board for sale to be made at a subsequent date, and where throughout the answer of appellant it had denied the making of a legal assessment against said property, the making of a legal report by the tax collector of his failure to sell same at the April, 1932, sales, a valid order of the board of supervisors of Harrison County for the sale at a subsequent date and a valid sale.
For the sake of argument let us admit that the sale by the sheriff and tax collector to the State of Mississippi made on September 19, 1932, for the taxes due thereon for the year 1931, of the property described in appellant's cross-bill was in all respects a legal, valid, binding sale, the appellee by his own admissions says that his patent from the State was not granted until after the statutes had been made to read that when any land is situated in a municipality and is subject to any special municipal benefit assessment which is secured by a lien on the land, such lien shall not be abated or cancelled on account of the sale of such land to the State for delinquent taxes but such lien shall be held in abeyance during the period such property is owned by the State, and immediately upon the title to the State passing from the State by virtue of a sale such lien shall again become effective.
Chapter 174, Section 17, Laws of 1936.
If the trial court, therefore, had properly rejected the record evidence with reference to the ad valorem taxes due the City of Biloxi upon said property, it would nevertheless have improperly rejected the record evidence of the special municipal benefit assessments levied against said property, and which by said act the municipality was entitled to have impressed as a lien against said property.
Appellee failed to make out a prima facie case. To have made out a prima facie case it must be presumed that the appellee offered in evidence record or documentary and oral evidence showing that the property described in the bill of complaint was sold by the sheriff and tax collector to the State of Mississippi at the time provided by law, that is, by Sections 3247 to 3249 of the Mississippi Code of 1930, that is, on the first Monday in April, 1932. The evidence introduced does not support such a presumption, or it must be presumed that the evidence introduced shows that the sheriff and tax collector reported his failure to make said sale at said time; that the board of supervisors ordered a sale made at a later date, and that all of the acts of all officers, boards, etc., having any duty to perform with reference thereto were performed in accordance with the provisions of law. The evidence introduced does not support such a presumption.
Furthermore, in a suit brought for the confirmation of a tax title claimed through a sale made at a time not expressly provided for by law the court cannot indulge in presumptions, and no matter how weak the title or claim of the appellant to the property involved may have appeared to the court, since appellant had denied that there had been a proper assessment, sale and report, it was incumbent upon the appellee to do more than make out a statutory prima facie case by the introduction of what purports to be a list of lands sold to the State of Mississippi on the "first Monday, the 19th day of September 1932." Section 3256 of the Mississippi Code of 1930 requires this list to be made up and filed on or before the first Monday in June. There is nothing in evidence to show why it was filed in September, unless we deal entirely with presumptions and presume that there were report, order and sale subsequent to the first Monday in April, 1932. But going back to the assessment of this property the appellant had denied the validity of same, and regardless of the prima facie statute this court held in the case of Henderson Molpus Co. v. Gammill, 115 So. 716, 149 Miss. 576, where the proceedings approving the assessment roll were void, the owner of the record title could have the tax collector's deed cancelled; and in the case of Cuevas v. Cuevas, 110 So. 865, 145 Miss. 456, that the purchaser acquired no title where the board in attempting to fix the date of tax sale in July, 1922, ordered the sale for July, 1921; and in the case of Hunter v. Bennett, 115 So. 204, 149 Miss. 368, that where the assessor failed to file the assessment roll within the time prescribed made the roll void, the tax sale based on such roll was void; and in the case of Cameron v. Whittington McGehee, 82 So. 311, 120 Miss. 595, that Section 4303 of the Code of 1906 requiring the assessor among other things when he files his roll to publish notice thereof and the date of the meeting of the board to consider the same, is mandatory, and in the absence of such notice the collector cannot make a valid sale of the land for default in payment; and in the case of McCord v. Shaw, 27 So. 602, 77 Miss. 900, that where an assessment roll was not filed with the clerk of the Board of Supervisors until September, a sale of real property for taxes levied under said assessment was invalid; and in the case of Carlisle v. Chrestman, 12 So. 257, 69 Miss. 392, that the failure to return an assessment roll within the time allowed by law invalidates a sale made thereunder; and in the case of Womack v. Central Lumber Co., 94 So. 2, 131 Miss. 201, that where Section 4328 of the Code of 1906, Section 6962 of Hemingway's Code, providing that no tax title shall be invalidated for error in conducting the sale; and Section 4332 of the Code of 1906, being Section 6966 of Hemingway's Code, providing that no tax title shall be invalidated except by proof that the land was not liable for sale for taxes, or that the taxes thereon had been paid, or the sale had been made at the wrong time and place; these sections were not applicable to a tax sale where there was a total departure from the statutes prescribing the fundamentals of the assessments and sale.
It is passingly strange that the appellee, in view of the denial of a proper assessment and sale, did not offer in evidence the assessment roll, the report of the tax collector to the board of supervisors that a sale had not been made of the property involved in April, 1932, and an order of the board of supervisors authorizing said sale in September, 1932. The validity of such documents had been denied, if such documents existed, and since it appears from the record that much is left to presumptions it must be presumed that there were reasons why the appellee did not want these records before the court.
Lamar Life Ins. Co. v. Billups, 169 So. 32, 195 Miss. 771.
This court has on numerous occasions held that a party suing to confirm title or cancel adverse claims thereto must plead and prove a perfect legal and equitable title in himself. He cannot rely upon the weakness of his adversary's title.
Acoff v. Roman, 159 So. 555, 172 Miss. 141; Peterson v. Kittredge, 65 Miss. 33, 3 So. 65, 5 So. 824; Metcalf v. Wise, 159 Miss. 541, 132 So. 102; Hunter v. Bennett, 149 Miss. 368, 115 So. 204; Lyon Co. v. Ratliff, 129 Miss. 342, 92 So. 229.
We therefore respectfully submit to the court that there is not one iota of evidence in support of the legality of the sale made by the sheriff and tax collector in September, 1932; that the appellant having denied the legality of same it was incumbent upon the appellee to prove, if possible, that the acts of the tax assessor, sheriff and tax collector, and board of supervisors were in all things done strictly in accordance with the provisions of law; that the certificate of the sheriff and tax collector not attached to the list when the list was introduced could not judicially determine the legality of the actions of such officers and board.
Gilbert v. Scarborough, 159 Miss. 679, 131 So. 876.
It will, therefore, appear that without any proof of an order of the Board of Supervisors for a sale in September, 1932, the court confirmed the appellee's title claimed through a sale made at said time, and that this was manifest error on the part of the trial court.
Corban Grant, of Biloxi, for appellee.
As to the manner of making amendments there are four statutes, the first is: "Amendments of bills and answers shall be made on paper distinct from the bill or answer, except where the amendment is of a brief character, when it may be made by an erasure or interlineation with ink of a different color from that in which the bill or answer is written; and the amendment shall be made in such manner that it may be ascertained with certainty in what it consists."
Griffith's Chancery Practice, sec. 394; Section 395, Code of 1930.
The amendments met the requirement of this section.
The original list of lands sold to the State of Mississippi on September 19, 1932, was properly identified and offered in evidence. The defendant in his objection made no objection to the identification of the list.
Section 1578 of the Code makes the list of lands sold to the State prima facie evidence that the assessment and sale of the land were legal and valid.
It is incumbent on the complainant to prove only that which is denied by the answer, and the pleadings control the scope of the testimony.
Griffith's Chancery Practice, sec. 572; Lowery v. Lyle, 37 Miss. 460; Sections 394 and 527, Code of 1930.
The original bill of complaint in this cause did not have the exhibit attached showing the order of the board of supervisors setting September 19, 1932, as the date for this tax sale, and the defendant filed his demurrer and answer in the same instrument in which answer he at that time denied there was such an order. The complainant thereafter on leave of the court amended the bill of complaint in this particular, giving the book and page of such order and attaching a copy thereof as Exhibit D to the bill of complaint as amended, and said exhibit thereby became a part of the record. The appellant then answered the amended bill of complaint and did not deny this order, and did not deny that the Exhibit D filed with the amendment was a true copy thereof, thereby admitting same.
This exhibit, therefore, became and is a part of the record in this case the same as if actually introduced at the hearing.
The court properly refused to admit in evidence the records of the City of Biloxi showing the alleged assessment and sale of this property for taxes of the City of Biloxi, when the alleged city tax sale was the same identical date as the State sale, and the complainant and cross-defendant were claiming title under the State sale, which made it incumbent upon the cross-complainant to show that the state sale was invalid in order that he would have a paramount title under the city sale. Certainly, the cross-complainant wholly failed to make such a showing.
Sections 2589 and 3252, Code of 1930; Hemphill v. Wofford, 173 So. 426.
The Hemphill case conclusively precludes the right of the city to have the tax sale, which it seeks to confirm by its cross-bill, confirmed.
The purchaser at the state sale secured a good title to the exclusion of any claim of the city for taxes for the same year.
Seward v. City of Jackson, 147 So. 781.
Argued orally by J.D. Stennis, Jr., for appellant.
Appellee, as complainant, filed his bill in the chancery court to confirm his tax title to lot 17, block 3, Kellar's addition (Avondale) in the City of Biloxi, Harrison County. It was alleged in the bill that the land of which the described lot forms a part was patented by the United States on August 7, 1837, to the heirs of Chevalier Peytovin, the original entryman, and that on April 24, 1872, the heirs of Peytovin conveyed the land to John H. Kellar, by a deed of record in Book 12, pp. 458-60, of the deed records of Harrison County. That Kellar divided the land into blocks and lots and filed a plat thereof on June 15, 1895, which plat is recorded in Book 1, p. 2, of the record of plats in said county. That in the year 1930, the described lot was legally assessed for the years 1930-1 to the heirs of Pizatti, then the owners, the bill giving the page and line of the assessment roll where the assessment could be found. The bill averred in detail all the various steps necessary to constitute a valid ad valorem assessment, and continued with the averment that the lot became delinquent for the taxes of 1931, but was not sold at the regular tax sale on the first Monday of April, 1932; and that thereafter the board of supervisors at its August, 1932, term, on a written petition of the tax collector, authorized the tax collector to sell this lot, with others delinquent, on the 19th day of September, 1932, and that there being no bidder for the said lot it was sold to the state.
The bill alleges that thereafter the list of lands sold to the state on said date, including the lot aforesaid, was filed with the chancery clerk of said county on the 14th day of October, 1932, and that the list remained on file for three years thereafter, and the lot was not redeemed from said tax sale. That on March 6, 1936, the state, acting through its lawful officers, naming them, sold the lot to complainant and delivered to him the forfeited tax-land patent of the state therefor, which patent was duly recorded in the county deed records on April 1, 1936. The bill contains many other averments not necessary to review here in detail, it being sufficient to say that, except as to the one item to be mentioned in the next paragraph hereof, the bill contained every averment necessary and proper in a bill to confirm a tax title.
It is not clear from the record what averments were made in the original bill in regard to the petition of the tax collector, and the order of the board of supervisors to sell this lot, and others delinquent, on September 19, 1932. It would appear from the demurrer filed by appellee, one of the defendants, that the alleged insufficiency raised by the demurrer, in the respect mentioned, was that the bill did not contain as an exhibit the petition and order aforesaid, and it would seem as best we can make out from the record that the bill was amended by interlineation so as to add the averment that the order of the board was recorded at p. 109 of Book 26 of the minutes of the board, and a copy of the order is exhibited as a part of the interlined amendment as Exhibit D to the bill. But the order as exhibited was a simple copy, not certified.
The answer admitted that the taxes for 1931 were delinquent, and that the tax collector failed to sell the lot on the first Monday in April, 1932, but the answer, to quote, "denies that thereafter at the August term, 1932 an order was duly entered on the minutes of the board of supervisors of Harrison County fixing the 19th day of September, 1932, as the time for selling lands at tax sale on which the 1931 taxes have not been paid, and which land had not been sold at the April, 1932, sale." This constitutes a full and complete denial of the allegations of the bill amended by interlineation that the board of supervisors had made at its August, 1932, term, an order for the sale of this and other delinquent lots on September 19, 1932, and having thus made the denial it was not necessary for the defendant to repeat it after the interlined amendment. Had the complainant completely redrawn his bill, it may be that a new answer to the new bill would have been necessary, as to which we express no opinion, because no such case is before us. The point we decide is that when an original bill is amended by interlineation, and the answer has already denied the matter inserted by interlineation, it is not necessary to draw an additional answer, nor to repeat by interlineation in the original answer what is already therein contained.
We have already mentioned that the exhibit to the original bill, made as a part of the interlined amendment, was a simple copy of the order of the board at its August, 1932, term. The copy was not certified, and, on the trial, complainant failed to introduce the order by recourse to the minute book containing the same. The case stands before us, therefore, as if no such order had ever been made. In Johnson v. Lake, 162 Miss. 227, 232, 139 So. 455, 456, 88 A.L.R. 262, it was held that "when a tax deed shows on its face that the sale was made on a day other than that regularly fixed by law, the burden of proof is on him who claims under the tax deed to show the proper order or orders, if any exist, by which the sale was postponed to the date shown upon the face of the tax deed." See, also, Bailey v. McRae, 176 Miss. 557, 169 So. 887.
We have but little, if any, doubt that the order of the board of supervisors was made at the August, 1932, term, and that it was in the words and figures shown by said Exhibit D to the amended bill; but, as already said, the complainant overlooked the formal proof of it, as was necessary in view of the stated denial. It is unfortunate that so large a part of the records of pleadings which come here for review are of averments which the plaintiff or complainant knew or should have known to be untrue, and of denials which the defendant knew or should have known were, as denials, untrue. And the added expense and waste of time in the trial courts as a consequence of the practice mentioned is beyond approximate estimate. The making of false affidavits to bills or answers which the party or parties should have known were untrue, which results in impeding or obstructing justice, should properly be held to be a contempt, 13 C.J., p. 9; and it is to be regretted that, in clear cases, of which there are so many, our trial courts have not undertaken to enforce that salutary rule.
The City of Biloxi filed a cross-bill demanding relief of various sorts in the alternative, to none of which we think it entitled, except in the one respect upon proper proof as follows: The city alleged that special improvements had been made by said city upon said property for which there existed at the time of the tax sale, and since, a special statutory lien, the amount due for the said special improvements being set out in the cross-bill and in an exhibit thereto. The city succeeded in proving by the complainant himself, without objection to the questions along that line, that the patent to him, although dated March 6, 1936, was not countersigned by the Governor and delivered until after March 26, 1936, upon which day the Legislature of that year adjourned. On March 26, 1936, there was approved an act of the Legislature, chapter 174, section 17, which provided, among other things, as follows: "When any land is situated in a municipality and is subject to any special municipal benefit assessment, which is secured by a lien on the land, such lien shall not be abated or cancelled on account of the sale of such land to the state for delinquent taxes, but such lien shall be held in abeyance during the period such property is owned by the state, and immediately upon the title to the state passing from the state by virtue of a sale, such lien shall again become effective."
It was contended by appellee and upheld by the court that this statute applied only to lands within a municipality sold after the date of the said act. The Legislature has entire control of the sale of state lands, and may enact that, as a part of the purchase price, the patentee or his assigns shall assume the special improvement municipal assessments which are a lien against the land, and we think the act in question discloses the purpose that, as to all patents subsequent to the passage thereof, the land shall be liable for the valid special improvement municipal liens against it, and without regard to when the state acquired its tax title thereto. And since the patent was countersigned by the Governor and delivery made subsequent to the passage of the act, the title thus conveyed is subject to the said requirements or conditions of the said act.
It is averred in the answer to the cross-bill that the special improvement lien is void and has been from the beginning. No proof was made along this line, and that question was not developed before or considered by the chancellor, and, we, of course, express no opinion upon it.
Reversed and remanded.
ON SUGGESTION OF ERROR.
The suggestion of error in in this case was assigned to and examined by a judge other than he who wrote the original opinion, this being the uniform practice here. The court has decided to overrule the suggestion of error, see opinion this day delivered in City of Jackson v. J.H. Howie (Miss.), 175 So. 198; but we have taken note of the argument urged in the suggestion of error that the city did not, in fact, succeed in definitely proving by Mr. Lowery, the appellee, that his patent was not delivered until after March 26, 1936. The Legislature adjourned on March 26, 1936, and Mr. Lowery stated in his cross-examination, in regard to the date upon which his patent was delivered to him, as follows: "I think the legislature had adjourned but I am not positive." It is said now that this answer by Mr. Lowery was an inadvertence; and in view of its form we have concluded, in the interest of justice, to allow this question of fact to be re-examined and more fully and definitely developed on the new trial ordered under the original opinion.
Suggestion of error overruled.