Opinion
No. 32947.
February 14, 1938. Suggestion of Error overruled March 28, 1938.
1. TAXATION.
The statute providing that land may be sold for taxes at any time designated therefor by order of board of supervisors if the sale has not been made at time appointed by law does not authorize board of supervisors to fix a day for the sale of land until the last day fixed by law has passed for sale of land upon which taxes have not been paid (Laws 1931, Ex. Sess., chapter 24, and chapter 25, amending Code 1930, sections 3247, 3249, 3256; Laws 1936, chapter 174, sections 12, 13, and chapter 280; Code 1930, section 3252).
2. TAXATION.
An order of board of supervisors made on the first Monday of July, fixing Monday, the first day of August as time for sale of property for taxes, was void and hence sale thereunder was also void under statutes fixing the first Monday of April and third Monday of September for sales for unpaid taxes, since sales may be made on other than prescribed dates only after last day fixed by law has passed (Laws 1931, Ex. Sess., chapter 24, and chapter 25, amending Code 1930, sections 3247, 3249, 3256; Laws 1936, chapter 174, sections 12, 13, and chapter 280; Code 1930, section 3252).
APPEAL from the circuit court of Yazoo county. HON. J.P. ALEXANDER, Judge.
Ruth Campbell, of Yazoo City, for appellants.
Under Chapter 25, Senate Bill No. 49, page 61, Acts of 1931, Section 3247 of the Code of 1930 was amended to read as follows: "3247. Sales of Land for Taxes. Advertisement — After the first day of February and after the first day of August each year, the tax collector shall advertise all land in his county on which the taxes due and in arrears have not been paid, as provided by law, as well as all land which is liable to sale for other taxes which have matured as required by law, for sale at the door of the courthouse of his county on the first Monday of April and the third Monday of September following as the case may be; such advertisement shall be inserted for three weeks in newspaper published in the county, if there be one, but in counties having two court districts the land shall be advertised and sold in the district in which such lands are situated, and be put up at the courthouse door and shall contain a list of the lands to be sold in numerical order as they are contained in the assessment roll, in substance as follows:
Name of Division of State County Total Owner Section Section Township Range Tax Tax Tax
or such other designation as it may be assessed. Land in cities and towns shall be described in the advertisement as it is described on the assessment rolls."
Realizing that the sale of the land was not made on either April 1st or third Monday in September of 1931, as fixed by the above law, for sale of lands for delinquent taxes due thereon for the fiscal year of 1931, and that the list introduced would not be prima facie evidence of such a sale, without first introducing an order of the board of supervisors to give the sheriff authority to sell the land for taxes due thereon for the fiscal year of 1931, appellee attempted to meet this burden by introducing the following order of the board of supervisors, which order, appellants say, the board was without power to pass, for the taxes for the fiscal year of 1931, and name August 1, 1931, or any other day, until after third Monday in September 1931 had passed, as the law provides for sale of all lands upon which taxes have matured on that date, and certainly the taxes, which were due on April 1, 1932, had matured and could therefore have been sold on third Monday in September, as the time in which these lands could be sold had not elapsed, therefore the board did not have the power to name August 1, 1932, when statute had already named September's third Monday, therefore the board did not have the power to act under Section 3252 and pass following order: "Whereas it appears to the Board of Supervisors of Yazoo County, Mississippi, that the sheriff and tax collector of Yazoo County, Mississippi, did not sell the land for taxes, which were liable to such sales at the regular time appointed by law for such sales, it is therefore ordered that said sheriff and tax collector shall sell, according to law, all land liable to be sold for unpaid taxes thereon, on Monday the first day of August 1932, after having advertised such sale in the manner prescribed by law. The lands to be so advertised and sold for unpaid taxes being described as follows:
"Delinquent Tax List of 1931
Receipt S.T.R. Tax 3400 Annie Jackson Lot 1 of Lot 332 Lin Add. Y.C. $32.82"
(the other lands so listed are not included herein)
This order is not sufficient for the sheriff to advertise property for taxes and damages for the fiscal year of 1931. The board acts under Section 3252 of Code 1930 which says: "If from any cause a sale of any land for taxes which is liable to such sale shall not be made at the time appointed by law for such sale, it may be sold thereafter, in the same or a subsequent year, at any time designated therefor by order of the board of supervisors, etc."
The board of supervisors is a court of special and limited jurisdiction, and before the board is authorized to proceed and name a day for sale to be made the jurisdictional facts must be present, and the manner in which the existence of such jurisdictional facts is fixed in the record, is by an adjudication thereof by the board, which adjudication can be evidenced only by its minutes, for without an adjudication of the essential jurisdictional facts and the entry of that adjudication upon the minutes the facts as well not exist at all.
Broom v. Board of Suprs., Jefferson Davis County, 158 So. 345.
The board of supervisors does not have the power to order a tax sale and authorize the sheriff to advertise the lands upon which taxes have not been paid, as described on a delinquent tax list for 1931 inserted in its minutes by the clerk of the board.
The minutes must show the jurisdictional facts whereby the board could obtain its authority to order a sale on another day than the regular day, and without showing the facts they just as well not existed.
Campbell Campbell, of Yazoo City, for appellee.
Counsel for appellant argues that under Chapter 25, Senate Bill 49, Laws of 1931, the sheriff was required to sell lands delinquent for taxes for 1931 on the 1st Monday of April and the 3rd Monday of September, 1932. A perusal of this act and Chapter 24 of the Laws of 1931 will reveal that Chapter 24 provides for payment of taxes in quarterly installments, the first installment being due November 1st, the next February 1st, the next May 1st, and the last August 1st, and providing that the first quarterly assessment may be paid on or before February 1st. Chapter 25 provides for a sale for delinquent taxes on the 1st Monday of April, and on the 3rd Monday of September and expressly provides for the suspension of Sections 3247, 3249, and 3256 of the Code of 1930, until December 1932. It is clear that Chapter 25 was passed in order that the sheriff could advertise and sell those lands on which the November and February installments of taxes had not been paid, on the first Monday of April, and those lands on which May and August installments had not been paid, on the third Monday of September. It will be noted that the act did not suspend Section 3252 of the Code of 1930 which provides, "If from any cause a sale of land for taxes which is liable to such sale, shall not be made at the time appointed by law for such sale, it may be sold thereafter, in the same or a subsequent year, at any time designated therefor by order of the board of supervisors." In the case at bar, no part of the taxes assessed on this lot for the year 1931 had been or were paid. The sheriff had a right to sell this lot at the sale held on the first Monday of April, 1932, as the taxes assessed on the lot were then delinquent. Under Section 3252 of the code, upon his failure to sell at the regular time, the sheriff then had a right to sell this lot at any time thereafter or even in a subsequent year for the delinquent taxes thereon, upon proper order of the board of supervisors.
Appellant contends that the order is insufficient in that the board failed to adjudicate from what cause the sheriff failed to sell the lands in question at the regular time. We fail to see why the board should be required to state in its order the reason, if any, that the lands were not sold, as the statute plainly says: (Section 3252, Code 1930) "If from any cause a sale of land for taxes which is liable to such sale shall not be made at the time appointed by law for such sale, it may be sold thereafter, in the same or subsequent year, at any time designated therefor by the order of the board of supervisors." No matter what reason the sheriff had for not making the sale, the statute provides for a sale and we do not see the necessity for any adjudication of the reason or lack of reason why the sale was not made.
Tom Hendrix, the appellee, brought an action of ejectment against the appellants, Alice Smith and Easter Little, in the county court of Yazoo county, for the possession of lot 1 of the subdivision of lot 332 of Lintonia addition to Yazoo City, Miss., as shown on Mercer's map of said city of 1905, and alleged that the appellants wrongfully deprived him of the possession thereof. The appellants appeared and pleaded the plea of general issue to the declaration; trial was had, and a judgment entered awarding the possession of the land to the appellee, Hendrix, whereupon appellants appealed to the circuit court. Judgment was also rendered against them there, and they appeal to this court.
The appellant Alice Smith, and her tenant, Easter Little, were in possession as the owners of the land prior to a sale for taxes by the sheriff of the county. Hendrix' possession was based upon his title acquired from Yazoo City, which, in turn, acquired this lot and many others in a patent from the state of Mississippi. The state acquired title by virtue of a sale for taxes on August 1, 1932, wherein this lot and others were struck off to the states, as shown by the list of lands sold to the state, filed by the sheriff of that county. The sheriff's sale was conducted pursuant to an order of the board of supervisors of the county at its regular July, 1932, meeting, in which it was recited that the sheriff and tax collector did not sell the lands therein described at the regular time appointed by law for such sales, and the order fixed Monday, the 1st day of August, 1932, at the time for the sale of this lot and others.
There were a number of objections to the various orders of the board of supervisors and the board of mayor and aldermen of Yazoo City, and also to the authority of the city of Yazoo to purchase these lots from the state.
We shall consider only the objection made by the appellee herein to the patent from the state to Yazoo City, the appellee having purchased this lot from the city of Yazoo on a date subsequent to the patent.
The purchase of these lots, some within the city and some without, is asserted to have been by virtue of the authority conferred by sections 12 and 13 of chapter 174, Laws of 1936. Lands within the municipality struck off to it for unpaid municipal taxes are also authorized to be purchased from the state by chapter 280, Laws of 1936.
The only question we shall consider here is whether or not the board of supervisors was authorized, in July, 1932, to fix the date of sale of lands, by the sheriff and tax collector, then in default for taxes due and delinquent for the fiscal year, 1931-1932. By chapters 24 and 25 of the Laws of the Extraordinary Session of 1931, the revenue laws were amended with reference to the imposition of taxes, due dates, and sale of land for taxes; and many sections of the Code of 1930, unnecessary to detail, were suspended during the fiscal year 1931-1932. By chapter 24 of the aforementioned laws, it was provided that taxes might be paid in installments, one-fourth on the first day of November of that year and the remainder in equal quarterly installments on the first day of February next and the first day of May and the first day of August following the date on which the taxes were levied and assessed, but that the November assessment should not be in default until the first day of February; and if any installment remained unpaid, all the taxes on a particular tract of land become due and payable.
By chapter 25, sections 3247, 3249, and 3256 of the Code of 1930 were suspended during the time this act was operative.
Section 3247, Code 1930, is amended by chapter 25, Laws of the Extraordinary Session of 1931, as follows: "After the 1st day of February and after the 1st day of August each year, the tax collector shall advertise all land in his county on which the taxes due and in arrears have not been paid, as provided by law, as well as all land which is liable to sale for other taxes which have matured as required by law, for sale at the door of the courthouse of his county on the first Monday of April and the third Monday of September following, as the case may be; such advertisement shall be inserted for three weeks in some newspaper published in the county, if there be one, but in counties having two court districts the land shall be advertised and sold in the district in which such lands are situated, and be put up at the courthouse door, and shall contain a list of the lands to be sold in numerical order," etc.
Section 3249, Code of 1930, was amended as follows: "On the first Monday of April and on the third Monday of September, as the case may be, if the taxes remain unpaid, the collector shall proceed to sell the land, or so much and such parts of the land, of each delinquent taxpayer, as will pay the amount of taxes due by him, and all costs and charges, to the highest bidder for cash," etc.
Section 3 of the said act amended section 3256 of the Code of 1930 so as to provide that the tax collector shall on or before the first Monday of June and on or before the third Monday of October file with the clerk of the chancery court the list of lands struck off to the state and to individuals. By its own terms the operation of chapter 25 ended December 31, 1932.
By section 3247, Code 1930, only one day in the year was fixed by law as the date of sale of lands for unpaid taxes, to-wit, the first Monday of April. As to this fiscal year, two days were fixed by law, as appears in the quoted part of the section for the sale of such lands. As to the dates fixed in chapter 25 of the Extraordinary Session, Laws of 1931, the first Monday of April and the third Monday of September, there is no preference or distinction; both were regular days, fixed by law, for the sale of lands for unpaid taxes.
By section 18 of chapter 24, Laws of Extraordinary Session of 1931, section 3252 was not suspended, but left in operation; and it is contended by the appellee that section 3252, being in operation, authorizes the board of supervisors to fix a day for the sale of such land between the first Monday of April and the third Monday of September of any year.
Section 3252, Code 1930, provides how land not sold at the regular time may be sold, the applicable part of which is: "If from any cause a sale of any land for taxes which is liable to such sale shall not be made at the time appointed by law for such sale, it may be sold thereafter, in the same or a subsequent year, at any time designated therefor by order of the board of supervisors."
We are of the opinion that the Legislature wisely left section 3252, Code 1930, in operation, for the reason that it might be applicable and necessary for it to operate after the third Monday of September, the last day of that year fixed by law for the sale of land for unpaid taxes by the tax collector. We are also of the opinion that chapter 24, Laws of the Extraordinary Session of 1931, fixed, by law, two days of the year 1932 on which the sheriff and tax collector could make sales of lands on which taxes had not been paid. There is no distinction in the statute between the two days; there is no reason why section 3252, Code 1930, should be invoked to order the sale of lands until the third Monday of September had passed and such lands then remained unsold. The very purpose of the Legislature in enacting chapters 24 and 25 of the Laws of the Extraordinary Session of 1931 was to grant to the taxpayer the easier, and the less rigid method of paying taxes by installment. No sound reason appears why the board of supervisors was called upon between the two days — the first Monday of April and the third Monday of September — to order a sale of land.
We are, therefore, of the opinion that while section 3252, Code of 1930, was left in operation, it could not be invoked by the board of supervisors as an authority for fixing a day for the sale of these lands until the last day fixed by law had passed for the sale of land upon which taxes had not been paid. The order made on the first Monday of July was premature, unnecessary, and void. The sale of the lands thereunder by the sheriff, therefore, was void. The state acquired no title thereunder, nor did the city of Yazoo. Therefore, its grantee, Hendrix, the appellee, had no title thereto. For the reasons stated, the objection to the patent by the state to the city of Yazoo and the deed of the city to Hendrix should have been sustained. There should have been a judgment for the appellants here.
We will, therefore, remand the case to the circuit court, there to be proceeded with in accordance with this opinion.
Reversed and remanded.