City of Pascagoula v. Valverde

*405 Anderson, J., delivered the opinion of the court. This appeal is from the chancery court of Jackson county. The sole question involved is as to priority of the lien given municipalities under section 17, chapter 260, Laws of 1912; section 5957, Hemingway’s Code, on abutting property for the assessment levied against such property for the purpose of specially improving the street on which such property is situated, as against a prior lien of a deed of trust on such property in favor of a county to secure a loan of sixteenth section funds of the county under sections 4150 and 4151, Code of 1892. We deem it unnecessary to set out the proceedings, except in a very brief manner, by virtue of which the question was developed. The deed of trust in favor of the county to secure the loan of sixteenth section funds was foreclosed against the property therein conveyed by the owner and borrower, appellee Valverde. The proceeds of the foreclosure were insufficient to satisfy the claim, of the county and also of the city of Pascagoula. The trial court held that the lien of the county on the property involved was paramount to that of the municipality. Prom this decree this appeal is prosecuted. The appellee M. L. Valverde for many years running-back prior to 1902 has owned the land involved abutting-on North Pascagoula street in the city of Pascagoula. In 1902 he borrowed from Jackson county one thousand dollars of sixteenth section funds, for the payment of which he gave his promissory note to the county and a deed of trust on said property to secure the same. This loan was made by authority of sections 4150 and 4151, *406 Code of 1892, and has been renewed from time to time since, and when this canse was begun more than the original amount borrowed was due on the loan. During the year 1920 the city of Pascagoula proceeding under chapter 260, Laws of 1912; sections 5941 to 5965, inclusive, Hemingway’s Code, paved North Pascagoula street on which Valverde’s property was situated, apportioning the cost thereof to the abutting property owners on said street, including Yalverde, as provided by said statute, Valverde failed to pay his assessment, and thereupon the bill in this case was filed by the city of Pascagoula making Jackson county and all others having an interest parties. There was a trial resulting in the decree appealed from, which held that the lien of the county was superior to that of the city. When the loan was made by Jackson county to Valverde in 1902, sections 3011, 3012 aiuL3013, Code of 1892, were in force, providing a plan for the improvement of streets, sidewalks, and alleys in municipalities by special assessment against abutting property 'owners. If not the identical the same character of statute is ¿o be found in sections 3411 to 3413, inclusive, Code of 1906. And ever since the making of the loan to Yalverde there has been in force in this state such a special improvement statute for municipalities. In all of which statutes the lien for the payment of the assessment on abutting property is made paramount to all other liens except that for the payment of state and county taxes. Section 3012, Code of 1892; section 3412, Code of 1906; section 17, chapter 260, Laws of 1912; section 5957, Hemingway’s Code (the latter being the statute under which the city of Pascagoula proceeded). The language of the present statute is substantially the same as that contained in the. Codes of 1892 and 1906, which follows: “The cost of the special improvement to the extent that it may be assessed on the property owners as provided by this act, whether the special improvement be upon the sidewalk or the street, shall be a lien upon the *407 property adjoining same, paramount to all other liens, state and county taxes excepted, for the amount due by the owner of the property for the cost of the above special improvements.” It is argued on behalf of the city of Pascagoula that the question involved is solvable by the language of the statute; that the statute means what it says, that the lien on the abutting property to pay for the special improvement shall be paramount to any and all other liens of any kind or character whatsoever except that of the state and county .for their taxes. On the other hand, it is urged on behalf of the county that sixteenth section school funds constitute public property, that such funds are held in trust by the state and counties for the benefit of the school children, and that a deed of trust to secure such funds and the proceeds thereof are exempt from taxation for any and all purposes as is other property belonging to the state. Section 4251, Code of 1906, section 6878, Hemingway’s Code, provides that the property named therein and “no other” shall be exempt from taxation, and among the property so exempt is all property real or personal belonging to the state or any county, levee board, or municipality in the state. As we understand, the trial court took the view that the proceeds resulting from the foreclosure of a deed of trust to secure sixteenth section funds were property belonging to the state or the county, which is a political subdivision of the state, and therefore exempt from being taken by the municipality under the special improvement statute. It was held in Grenada v. Grenada County, 115 Miss. 831, 76 So. 682, that counties as political subdivisions -of the state were immune from liability to the same extent the state was; that there could be no liability either of the state or county unless such liability was expressly or impliedly created by statute; and that under the statute here involved chapter 260, Laws of 1912, Hemingway’s Code, sections 5941 to 5965, inclu *408 sive, a municipality had no legal right to impose liability upon a county or the courthouse property of a county for paving a street on which such courthouse property was abutting, because there was no express or implied authority therefor in the statute. Whether the proceeds arising from the foreclosure of a deed of trust securing sixteenth section funds are subject first to the lien given by this special improvement statute or that of such deed of trust, although the latter is prior in time where, as in this case, the rights of both the county and municipality are to be adjudicated, it seems, depends entirely on which lien under the law is prior in right as against the land, for that will determine the status of the proceeds of the land. The statute authorizing the loan by the county of the sixteenth section funds, section 4150 and 4151, Code of 1892, provides, among other things, that the several counties having sixteenth section funds are authorized through their boards of supervisors to lend such funds for a term of not exceeding five years, “the borrower in all cases securing the same by deed of trust upon real estate, duly filed and recorded.” Under section 2779, Code of 1906, section 2283, Hemingway’s Code, a deed of trust is not real estate nor an interest in land. It is expressly provided by that statute that the grantor in a deed of trust shall be deemed to be the owner of the legal title to the property covered thereby except as against the beneficiary therein and his assigns or the trustee in such deed of trust after breach of condition. There is no principle better settled in this state than that the mortgagor is the owner of the mortgaged property as against the world until a foreclosure of the mortgage, and he is owner also as against the mortgagee until after breach of condition, and at any time before forfeiture as owner of the legal title is capable of transmitting same by descent, devise, or deed; the mortgage being but a security for the debt and passing to the assignee of the debt as a mere incident thereto. Buck v. Payne, 52 Miss. 271; Carpenter v. Bowen, 42 Miss. 28. *409 It is important to keep in mind that Valverde’s abutting property was the thing taxed. It was that which the city by the special improvement statute was given a lien on paramount to all other liens except that for state and county taxes. It should also be kept in mind that the deed of trust to secure the sixteenth section loan to Valverde was on this property. Therefore the contest between the city of Pascagoula and Jackson county was over the question of priority of lien as against that property. Certainly Valverde’s lot was not state property; it belonged to him, notwithstanding there was a deed of trust on it to secure sixteenth section funds. The city of Pascagoula did not attempt to tax for the special street improvement the deed of trust in favor of the county, which was not property, but a mere security for an indebtedness. It sought to tax the abutting property and nothing else. The holder of a mortgage or deed of trust to secure an indebtedness is not the owner of any interest in the real estate covered by the mortgage. That belongs to the mortgagor or grantor in the mortgage or deed of trust. We are of opinion that the legislature intended by the statute authorizing the loan of the sixteenth section funds that the counties in lending such funds and taking security therefor should stand exactly like individuals similarly situated with rights no greater nor less. We hold therefore that assessments under this special improvement statute constitute a prior lien against the abutting property to all other liens except the lien for state and county taxes, whether such ’other liens be prior or subsequent. All conveyances and incumbrances of real estate by the owner are made subject to the right of the state to tax such real estate. When the county of Jackson lent the sixteenth section school funds to Valverde, it took the chances of his property which he gave as security therefor being subjected not only to state, county, and general municipal taxes, but assessments for special improvements of the character here involved. It took the .chance of such taxation even *410 to the extent of .the destruction of its security, for the county knew that the power to tax carries with it the power to destroy — to confiscate if necessary. The assessment against abutting property under the statute here involved is a tax for public purposes. It is true it is not so to the same extent probably as ordinary state, county, and municipal taxes. It is a tax levied, however, for the benefit of the traveling public as well as the special improvement of abutting property. The two purposes cannot be separated. Reversed and remanded.