Howard v. Walters

Opinion. Cooper, J.: In Weir v. Kitchens, 52 Miss. 14, it was decided that the revenue act of 1812 (Acts of 1812, p. 1), established a radically different procedure for the condemnation and sale of lands delinquent for taxes, from that contended in the Code of 1811, and that the provisions of the. Code, section 1100, declaring that “the tax-collector’s conveyance to individuals, and list of lands sold to the State, shall be prima facie evidence that the assessment and sale and all proceedings of sale were valid,” was not applicable to sales made under the provisions of the later act. This decision [197] lias been subsequently followed in the ease of Vaughan v. Swaysie, 56 Miss. 704. We axe now earnestly urged to review these decisions and to overrule them. It is said that the return of the delinquent list by the collector to the board of supervisors was required by the Act of 1872 for the protection and benefit of the State alone, to the end that the collector might be charged with all reported delinquencies not properly existing, and that the tax-payer was not at all interested in the performance of this duty by the officer, because the assessment of the property, the levy of the tax, and the failure of the owner to pay the same, subjected the property to sale. It has been decided in several cases that such was the effect of the revenue act contained in the Code of 1871, and that where the assessment and the levy of the tax was legal, upon default in payment, the collector was armed with power of sale as under execution, and that sales, though irregularly made, under such. circumstances would be upheld. Virden v. Bowers, 55 Miss. 1; Gamble v. Witty, 55 Miss. 26. But where there was no legal assessment or no legal levy of taxes, though the tax-payer failed to pay the amount' claimed, no legal sale could be made. Gamble v. Witty, 55 Miss. 26; Johnson v. Futch, 57 Miss. 73; Smith v. Nelson, 57 Miss. 138. These decisions proceed upon the theory that the assessment and its return gave jurisdiction to the board of supervisors of the person of the owner and the property assessed; that the levy of the tax was the judgment of the court, and the award of execution, in defardt of payment, and that the assessment roll in the hands of the officer was in the nature of an execution under which he was authorized to make sale of the delinquent land. But a different rule was established by the Act of 1872. Under its provisions the collector had no authority to sell the lands by reason of the legal assessment and levy of taxes. In addition to this, it was necessary that the delinquent list ■ should be returned to the board of supervisors, and that a condemnation of the land should be made, after notice to the owner. A judgment of condemnation was necessary, and that could only be rendered at the time and in the manner prescribed by the statute. Without the return of the delinquent list, it had no jurisdiction over the thing, and until service of notice by process or publication, it had no juris [198] diction of the owner. The board could not take any steps towards condemning the land, until after the return of the list. That was a prerequisite jurisdictional fact, and in its absence all the proceedings of the board were coram non judice. The evidence introduced by the plaintiff shows that the order for publication and notice was made by the board, anterior to the return of the list; that the list -was not in fact returned until the day fixed for hearing objections to the rendition of judgments of condemnation; that this day was long subsequent to the limit which could have been allowed by the board for the return of the list; that no notice was therefore given to the persons to whom the lands were assessed, but judgment -was rendered condemning the lands to sale on the same day upon which the list -was returned, all of which proceedings were unauthorized by the statute, conferred no power on the collector to sell, and -warranted the instruction given by the court below. The judgment is affirmed.