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Gardner et al. v. Price et al

Supreme Court of Mississippi, In Banc
Apr 9, 1945
21 So. 2d 1 (Miss. 1945)

Opinion

No. 35785.

February 26, 1945. Suggestion of Error Overruled April 9, 1945.

1. COUNTIES.

Entries on minutes of county board of supervisors at its August meeting, reciting: "All minutes of the regular and continued July, 1930, meetings were read and approved," was sufficient proof that minutes of board at the July meeting were not signed by president of board before final adjournment of July term as required by statute, in view of custom of board to have such minutes read and approved at succeeding meetings (Code 1942, sec. 2886).

2. COUNTIES.

The county board of supervisors is a court of record since it is required to keep minutes of its proceedings (Code 1942, sec. 2886).

3. COUNTIES.

The Code provision requiring minutes of each day to be read and signed by president before final adjournment of county board of supervisors is mandatory (Code 1942, sec. 2886).

4. COUNTIES.

Where equalization of taxes could be initiated only at July meeting of county board of supervisors after examination and notice to taxpayers ordered at such meeting to appear at August meeting and present objections, and president of board failed to sign minutes before final adjournment in July, but signed them at August meeting, the transactions in connection with such taxation reflected in the minutes of the July meeting could not be ratified at the August meeting, hence, tax sale title based on such attempted August ratification was void (Code 1942, sec. 2886).

5. COUNTIES.

Where minutes of county board of supervisors at July meeting were not signed by president of board before adjournment as required by statute, but were approved and signed at following August meeting, such acts of the board which it had authority to transact at the August meeting would not be invalid but would become effective as of the date of approval and signing (Code 1942, sec. 2886).

SYDNEY SMITH, C.J., dissenting; ROBERDS, J., dissenting in part.

APPEAL from the circuit court of Humphreys county, HON. S.F. DAVIS, Judge.

Elbert Johnson, of Indianola, and Alexander Alexander, of Jackson, for appellants.

Plaintiffs failed to show that their title passed out of the government of the United States. Except in rare cases where both parties claim title from a common source or in cases where the defendant is an intruder or trespasser, the rule of law well established in this state is that the plaintiff must show a complete legal title to the land. The only evidence of title out of the government on which plaintiffs relied is a page from a book in the chancery clerk's office in Humphreys County which purports to show original entries. The defendants, appellants, objected to the introduction of this record for the reason that there was no certificate of any kind in the book, and in fact had no authentication but was admittedly only a book that was in the clerk's office which may or may not have been a copy of some other record. We know of no law that will permit the introduction of an uncertified record of this character in lieu of the proper certificates of the Land Office of the United States or certified copies of patents from the United States. It is inconceivable to us as to how plaintiffs could have expected to meet the requirements of law by the introduction of an uncertified and unauthenticated book of original entries alone.

McRaven v. McGuire, 9 Smedes M. (17 Miss.) 34; Laurissini v. Doe ex dem. Corquette, 25 Miss. 177, 57 Am. Dec. 200; Cunningham v. Dean, 33 Miss. 46; Acoff v. Roman, 172 Miss. 141, 159 So. 555; Code of 1930, Sec. 1582; Griffith's Mississippi Chancery Practice, Sec. 219, p. 219.

Plaintiffs did not prove a valid tax sale of the lands to the State of Mississippi, for the reason that the plaintiffs failed to introduce a certified separate list of lands sold to the state. An examination of the alleged tax collector's report of lands sold for taxes shows it was not certified by anyone. It was in fact a correct list of lands sold to individuals on the first Monday and the 6th day of April, 1931. In the body of the instrument there appears an apparent record of a sale to the State of Mississippi on April 6, 1931, of certain lands assessed to C.O. Dewey which, with other lands, includes the entire northeast quarter of Section 11, Township 14 North, Range 3 West. Please remember that we are dealing with the east half of the northeast quarter of said Section 11. If there is any virtue in requiring (as the statute does) separate certified lists of lands sold to the state and those sold to individuals, the real purpose of the act is not only violated by the tax collector's failure to certify a list of lands sold to the state separately, but is grossly magnified and rendered confusing by the fact that the particular report of the tax collector in this case was misleading and to a casual observer would purport to cover only lands sold to individuals.

Zingerling v. Henderson (Miss.), 18 So. 432; Ferrill v. Dickerson, 63 Miss. 210; Mayson et al. v. Banks, 59 Miss. 447; E.L. Bruce Co. v. Smallwood et al., 188 Miss. 771, 196 So. 227; Code of 1871, Sec. 1698.

One relying upon a deed from a state to lands sold him as forfeited tax lands must introduce the list of lands sold to the state for taxes. This list is the foundation of his claim of title and without its introduction his title necessarily fails.

Houston Brothers v. Lenhart, 136 Miss. 841, 101 So. 289.

The minutes of the board of supervisors of Humphreys County for the period from July 1930 to November 1930, dealing with the assessment of said lands for taxes, were not signed by the president of the board before final adjournment of the board as provided by Section 211 of the Code of 1930, which was Section 3678, Hemingway's Code of 1917.

Arthur v. Adam Speed, 49 Miss. 404; Beck, Tax Collector, v. Allen, 58 Miss. 143, 156; Hammond-Gregg Co. v. Bradley, 119 Miss. 72, 80 So. 489; Watson v. State, 166 Miss. 194, 146 So. 122; Simpson County v. Burkett, 178 Miss. 44, 172 So. 329; Henderson Molpus Co. v. Gammill, 149 Miss. 576, 115 So. 716; Birdsong v. Dodds, 2 Miss. Dec. 423; Code of 1857, Art. 14, p. 416; Code of 1871, Sec. 1361; Code of 1880, Sec. 2142; Code of 1930, Secs. 211 (Hemingway's Code of 1917, Sec. 3678), 750, 3162.

Parol evidence was admissible to show when minutes of the board were signed.

Campbell v. Humphreys County, 133 Miss. 410, 97 So. 722; Brigins v. Chandler, 60 Miss. 862, 866; Webb v. Mobile O.R. Co., 105 Miss. 175, 62 So. 168; Hinson v. Forsdick (Miss.), 25 So. 353; Stevenson v. Reed, 90 Miss. 341, 43 So. 433.

See Hammond-Gregg Co. v. Bradley, supra; Watson v. State, supra; Simpson County v. Burkett, supra; Mullins v. Shaw, 77 Miss. 900, 28 So. 958; Smith v. Board of Supervisors of Tallahatchie County, 124 Miss. 36, 86 So. 707.

We can clearly see a distinction between attempt to impeach matters and things contained in the minutes of the board of supervisors by one of its own members and the introduction of evidence to establish the fact that there has been a failure to comply with the statute in setting up the minutes of the board. The signing of the minutes of each monthly meeting by the president of the board of supervisors is an authentication of the minutes and the signature of the president gives the minutes verity and renders them inviolable and not subject to be questioned by the board. We must not forget that the action of a board of supervisors is tantamount to a judgment of a court of inferior jurisdiction and it would be a dangerous precedent to permit evidence by the various members to vary the minutes of the board in which they had participated and which had been certified and authenticated by the signature of the president made before adjournment. Evidence of the failure of the president to sign the minutes was not an attempt to impeach or to dispute the record which the minutes disclosed but such evidence was proper to establish the fact that the alleged minutes of the board had not been properly certified and authenticated by the required signature of the president before final adjournment of the particular meeting.

This is a suit in ejectment, especially possessory action. Defendants' possession of the property is unquestioned. Under the general isue plea the defendants do not admit the title of the plaintiffs, and thus the burden of establishing title is upon the plaintiffs.

Code of 1942, Sec. 787.

Plaintiffs are not entitled to answer the argument of the defendants by stating that the defendants have not substantiated their title to the premises. The defendants were in possession and the suit is not based upon any weakness in the defendants' title but is based solely upon the strength of the plaintiff's title.

Winn v. Coles' Heirs, Walk. (1 Miss.) 119; Lum v. Reed, 53 Miss. 73; Johnson v. Helm, 1 Miss. Dec. 170; Wilson v. Peacock, 111 Miss. 116, 71 So. 296.

Cooper Thomas, of Indianola, for appellees.

The appellant would have this Court strike down and hold invalid a title evidenced by a patent from the state because the ancient book of original entries, generations old, does not yet at this late date retain the certificate, and because the records of Humphreys County, a new county, are copies of the original records of other counties and the records of Humphreys County do not yet show the specific certificate of the copyist who made these copies some twenty years ago. The technical objections to the formality of the certificates cannot prevail against the ancient records. These records were placed in the record books of the county and, though not formally certified, after this great lapse of years, are presumed to have been placed there by a proper authority.

City of Lexington v. Hoskins, 96 Miss. 163, 50 So. 561; Code of 1942, Sec. 1732; Laws of 1918, Ch. 348; 53 C.J., Sec. 38; 31 C.J.S. 798, 810, 823, Sec. 146.

The second question raised by appellant is that plaintiffs failed to prove a valid sale of the lands to the State of Mississippi. We believe that the appellant has lost sight of the burden of proof. When we have shown that title passed from the government and offered without objection a valid patent from the State of Mississippi, the burden is then on the defendant to show that such tax title is not good, because of an invalid tax sale. It is presumed that there was a valid tax sale or else the state would not issue its patent. Any one attacking the patent must assume the burden of proving that it was an invalid tax sale.

A patent carries with it the presumption that all the legal prerequisites necessary to its issuance have been complied with and the presumption that the officers charged with executing land grants have performed their duties in regard to the several acts to be done by them.

Edward Hines Yellow Pine Trustees v. State ex rel. Moore, Land Commissioner, 133 Miss. 334, 97 So. 552.

Appellant makes the technical objection that the tax sale was invalid because the record fails to show the signature of the tax collector. It does show that the tax collector, under a certificate, did, after making a sale, file with the chancery clerk the aforementioned report. His actual signature was a mere formality, for when he physically filed with the chancery clerk such report stating "I, T.L. Gilmer, Sheriff and Tax Collector, in and for said county and state, do hereby certify," that physical act of his and manual delivery of his report to the chancery clerk makes such report a part of the public records. Upon its manual delivery to the chancery clerk, worded as it is, handled as it is handled, it becomes an official record in the custody of the chancery clerk, which is a substantial compliance with the statute. Appellant further argues that the tax sale was invalid because the tax collector's report contained a list of land sold to the state, as well as to individuals. In other words, the appellant would strike down this title and say the tax sale was invalid because the sheriff made a joint report of his sale rather than separate reports. This is a technicality of the highest order.

A failure by the sheriff to transmit or record a list, or a defective list, shall not affect or render the title void.

Code of 1892, Sec. 3815; Code of 1930, Sec. 3256; Code of 1942, Secs. 9935, 9936; Laws of 1934, Ch. 188.

The appellant undertook to prove by the attorney for the board, a member of the board and an official of the county having to do with assessments, that the president of the board signed the July minutes during the regular August meeting of the board and so on. Such evidence was objected to and ruled out by the lower court. But counsel now argues that such evidence was both competent and material. Our answer is that the lower court was correct in holding that the solemn minutes of the supervisors could not be thus impeached and if such evidence was competent and if such were the facts, there was still a valid assessment for taxes. This requirement of the statute is directory and not mandatory, and all of the proceedings of the board, otherwise regular, are not invalidated by this one month's delay by the president in the signing. We also insist that when the president signed the minutes at the next meeting during the regular session, after reading the same in the presence of the other members of the board, this was a validation and ratification of what had been done.

Simpson County v. Burkett, 178 Miss. 44, 172 So. 329.

Argued orally by Jas. A. Alexander, and Elbert Johnson, for appellants, and by Forrest G. Cooper, for appellees.


This action was filed in the Circuit Court of Humphreys County by Edward D. Price, alleged to be the same person as Delmo Price, and L.D. North, as plaintiffs, who are appellees here, and they will hereafter be so called, against S.W. Gardner, Sophia Gardner and Bessie Mae Gardner, as defendants, appellants here, and they will herein be so called. The suit is an action in ejectment and demanded possession of eighty acres of land in Humphreys County, Mississippi, described as the East Half of the Northeast Quarter of Section 11, Township 14 North, Range 3 West. Damages were also demanded for the use and occupation of the land.

Taxes against this land for 1930 were assessed to one C.O. Dewey, as owner, and on his failure to pay the same, the lands were sold to the State of Mississippi by the Tax Collector of Humphreys County on April 6, 1931. The lands were not redeemed from this sale. On September 22d 1942, the state issued a forfeited tax land patent conveying said lands to Delmo Price, one of the appellees, and being the same person as Edward D. Price. He and his wife on December 10th, 1942, by a quit claim deed conveyed a one-half undivided interest in said lands to L.D. North, the other appellee.

On February 4th, 1931, the said C.O. Dewey and Sophia Gardner and S.W. Gardner executed a trust deed on said lands to H.T. Odom, as trustee for Citizens Bank Trust Company, to secure the payment of a certain sum therein mentioned, which said trust deed was foreclosed on April 13th, 1932, and the land sold to Federal Intermediate Credit Bank of New Orleans, Louisiana, along with the other lands included in the trust deed. On December 19th, 1942, the Federal Intermediate Credit Bank by quit claim deed conveyed the land involved in this suit to S.W. Gardner and Sophia Gardner, two of the appellants in this appeal.

The appellants filed a plea of the general issue and the case proceeded to trial, resulting in a judgment for the appellees requiring appellants to surrender possession of the premises to appellees on a date fixed and for the value of one year's rent. From this judgment the defendants below appealed here.

There are several points raised by appellants, but it is necessary for us to consider only one of them, as in our judgment it is decisive of the case, and that point, as stated in the brief of appellants, is that "The minutes of the board of supervisors of Humphreys County for the period from July 1930 to November 1930, dealing with the assessment of said lands for taxes were not signed by the president of the board before final adjournment of the board as provided by Section 211 of the Code of 1930, Section 3678, Hemingway's 1917 Code," now Section 2886, Code 1942.

This section, as far as pertinent to the issue here, contains this provision: "The minutes of each day shall be read and signed by the president before the final adjournment of the board." The contention, in brief, made by appellants is that appellees acquired no title to the lands involved because the forfeited tax land patent from the state was void because the state had no title to convey by patent due to the fact that the sale of the land for 1930 taxes was void because of the illegality of the assessment on account of the alleged violation of the statutory requirement that the minutes be read and signed by the president "before the final adjournment of the board."

To sustain this attack upon the validity of the proceedings of the July, 1930, meeting of the board of supervisors, being the term fixed by law for notice to the taxpayers that the tax rolls had been examined and were open for inspection, and objections to be filed with the clerk on or before the first Monday in August, 1930, the defendants offered a member of the board, the county tax assessor, and the attorney for the board, as witnesses to prove that the minutes were not signed until the August, 1930, meeting, at which meeting objections were to be heard pursuant to the notice directed to be and given by the clerk. Appellees objected to this oral evidence and their objection was sustained. For the reason now to be mentioned it is not necessary for us to decide whether the Court was correct in its ruling in this precise particular.

Appellants introduced the minutes of the board at its August meeting, which under the demonstrated practice of the board were not signed until its September meeting, and so on, containing this entry: "All minutes of the regular and continued July, 1930, meetings were read and approved." At the August meeting the notice ordered at the July meeting to be given the taxpayers were copied at length on the August minutes, and the tax rolls and its assessments attempted to be approved and made final. At the following September, 1930, term of the board the minutes contained this entry: "All minutes of the regular and continued August 1930 meeting was (sic) read and approved." This practice was followed each month by the board.

The question thus presented is, does this entry on the minutes of the board of supervisors amount to proof that the minutes of the board at its July, 1930, meeting were not signed by the president before final adjournment of the July term? And, the further question, if we hold that it does constitute such proof, would the failure of the president of the board to sign the minutes before final adjournment invalidate the acts of the board at its July, 1930, meeting relating to tax assessments?

In our opinion it amounts to sufficient proof that the minutes of the board were not signed at the July, 1930, meeting of the board before the final adjournment thereof. If the minutes of the July meeting had been signed before the adjournment in July, they could not have been reviewed or affected by approval or disapproval at the August meeting. The signature of the president, if attached to the minutes before adjournment of the July term as provided in the statute, would have foreclosed examination of such minutes at the August meeting to determine whether or not the same should be approved. Therefore, the only reasonable inference which can be drawn from the entry, "all minutes of the regular and continued July 1930 meetings were read and approved," is that the president of the board had not signed the minutes before the final adjournment of the July, 1930, meeting.

In Arthur v. Adams Speed, 49 Miss. 404, it was pointed out that the statute, Article 14, p. 416, Code of 1857, required the minutes of each day to be read over and signed by the president, and the Court held that the omission to do so did not invalidate the proceedings. In Beck, Tax Collector, v: Allen, 58 Miss. 143, the board at its September, 1880, term agreed to the levy but adjourned without entering its order on the minutes, which was entered by the clerk before the October meeting, at which meeting the minutes were read and approved and signed by the president. The Court said: "We entertain no doubt that the action taken at the October term made them valid from that time. The statute (Code 1871, sec. 1361) does not require that the president of the board shall sign the minutes before adjournment. . . . Moreover, this approval and signing at the next meeting would have the effect to make the order valid, as of that term, if the order be such as the board could make at that term."

The Revised Code of 1880 in Section 2142, dealing with this subject, does not require that the president sign the minutes before the final adjournment of the board.

The statute now in force, Section 211, Code 1930, now Section 2886, Code 1942, provides: "It shall be the duty of the clerk of the board of supervisors to keep and preserve a complete and correct record of all the proceedings and orders of the board. He shall enter on the minutes the name of the members who attend at each meeting, and the names of those who fail to attend. He shall safely keep and preserve all records, books, and papers pertaining to his office, and deliver them to his successor when required. The minutes of each day shall be read and signed by the president before the final adjournment of the board."

The present statute refers to minutes of each day but requires that they shall be signed before final adjournment. The legislature must be presumed to have had some reason for so changing the former statute, and the reason manifest here is it meant to avoid the decision of the Court that signing the minutes each day was directory only as to matters which could only have been disposed of at a particular meeting, and no other meeting, by making signing before final adjournment mandatory as to such matters. The statute in its present form first appeared as Section 287, Annotated Code of 1892.

Mr. Justice Griffith, speaking for the Court in Simpson County v. Burkett, 178 Miss. 44, 172 So. 329, 331, referring to irregularities in the signing of the minutes of boards of supervisors, said: "We have determined that by reason of the seriousness of the question which we have been discussing to pretermit decision of it at this time, trusting that with what we have said there shall be such a return to obedience to the statute, section 211, that it will not hereafter be necessary to decide this far-reaching question." We are now again confronted with a similar situation.

The question is whether or not the law was changed so as to make it in its present form mandatory, in other words, whether the rule now prescribed by the legislature in changing the old statute as interpreted by court decisions to be directory, was due to some purpose of the legislature, or just a juggling of words.

We have spoken further, of late, with reference to statutes dealing with minutes of courts, and the board of supervisors is a court of record, since it is required to keep minutes of its proceedings. The statute last discussed by us in this connection is Section 750, Code 1930, now Section 1665, Code 1942, as follows: "The minutes of the proceedings of the Supreme, circuit, chancery and county courts shall be entered by the clerk of each, respectively, in the minute-book of the court, against the next sitting of the court, if practicable, when the same shall be read in open court; and when corrected shall be signed — the minutes of the Supreme Court by the chief justice or presiding judge, of the circuit court by the circuit judge, of the chancery court by the chancellor and of the county court by the county judge; and on the last day of the term the minutes shall be drawn up, read, and signed on the same day, or before the adjournment of the court."

This Court held in Watson v. State, 166 Miss. 194, 146 So. 122, 126, dealing with a situation where the minutes of the court were not signed before the final adjournment of the court, that, "In view of the mandatory provision of this statute, there is no right or authority in a presiding judge to sign the minutes of his court after the term has expired by operation of law and is in vacation."

Applied to the case here considered, and bearing in mind the change in the statute, we are of the opinion that the requirement of the statute that the president of the board sign the minutes thereof before adjournment of the meeting, where the transactions sought to be evidenced or affected by such minutes were had, is mandatory, and was not obeyed in the case before us. We are not to be understood as holding that those acts of the board which were had at the July, 1930, meeting would be invalid, where the board had the authority to transact them at the August, 1930, meeting, when the minutes were read, approved and signed at the August meeting. They, however, became effective by such approval and signing as of the August meeting, and from the date of the signing at the August meeting. But in the case before us, the equalization of taxes could only be initiated at the July, 1930, meeting after examination at the July, 1930, meeting, and notice to the taxpayers ordered at the July meeting to appear at the August meeting to present objection; so the transactions in connection with the taxation reflected in the minutes of the July, 1930, meeting could not be ratified at the August, 1930, meeting by failure to sign the minutes before final adjournment in July, and signing same at the August meeting. And hence such tax matters required by law to be transacted only at the July meeting could not be ratified by signing July minutes at the August meeting, thereby making them August and not July acts.

The trial court should therefore have denied relief to appellees on the situation before us as to the tax assessment, and for lack of the right to possession under a void patent. The judgment of the trial court will, therefore, be reversed and judgment rendered here for appellants.

Reversed and judgment here for appellants.


DISSENTING OPINION.


I express no opinion on the admissibility of parol or extrinsic evidence, not merely to contradict the minutes of this board of supervisors, but to show that they are of no legal effect for the reason that they were signed by the president of the board after he had lost the power to so do. But if extrinsic evidence is admissible for that purpose, the recital in the minutes of a subsequent meeting of the board relative to whether the minutes of its prior term were signed before the adjournment of that meeting is extrinsic evidence within the meaning of the parol evidence rule, if that rule here applies.

I agree with Judge ROBERDS that if the minutes of this subsequent meeting of the board are to be considered, the recital therein that the minutes of the former meeting were read and approved does not disclose that the former minutes were not signed at the former meeting. The effect of this recital must be limited to its words and should not be enlarged by inferences therefrom that may or may not be in accord with the true facts.

PARTIALLY DISSENTING OPINION.


The minutes of the supervisors are being attacked some thirteen years after entrance. For that time, the minutes have been, and are now, regular on the face thereof. There is no charge of fraud, or mistake, or that the minutes do not correctly set forth the action then taken by the supervisors. The oral proof to contradict them was not competent. Johnson v. Edde, 58 Miss. 664; Jones v. Williams, 62 Miss. 183; Childress v. Carley, 92 Miss. 571, 46 So. 164, 131 Am. St. Rep. 546. The recitals in the minutes entered at each subsequent monthly meeting to the effect that the former minutes were then read and approved did not, in my opinion, prove that the former minutes had not been signed by the president. The burden of so showing was on appellants. In the cases of Watson v. State, 166 Miss. 194, 146 So. 122; Williams v. State, 179 Miss. 419, 174 So. 581 and Jackson v. Gordon, 194 Miss. 268, 11 So.2d 901, the defects in the minutes appeared in the minutes themselves at the time they were attacked. The question of contradicting them by extrinsic proof was not involved.


Summaries of

Gardner et al. v. Price et al

Supreme Court of Mississippi, In Banc
Apr 9, 1945
21 So. 2d 1 (Miss. 1945)
Case details for

Gardner et al. v. Price et al

Case Details

Full title:GARDNER et al. v. PRICE et al

Court:Supreme Court of Mississippi, In Banc

Date published: Apr 9, 1945

Citations

21 So. 2d 1 (Miss. 1945)
21 So. 2d 1

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