M.W. Boyd and Welch Cooper, all of Laurel, for appellant.
Emma Jones Webster, appellee, filed this suit to cancel a forfeited-tax-land patent issued by the State of Mississippi to Nathaniel Jackson, appellant. The patent was issued on the seventh day of April, 1942. The land was sold on the third Monday of October, 1936, for taxes due for the year 1935. The sale was made pursuant to an order of the board of supervisors of Jones County made on September 9, 1936, the order being based upon what are now Sections 9926 and 9927 of the Code of 1942. The court cancelled the patent on this record and this appeal follows.
The court will have observed that the order of the board of supervisors directing the sale of the land in controversy was made on September 9, 1936. This date was prior to the third Monday in September. It was between the first Monday in April and the third Monday in September. The cases of Smith v. Hendrix, 181 Miss. 229 , 178 So. 819 , and White v. Noblin, 183 Miss. 92 , 183 So. 914 , are against appellant on the proposition that the order of the board of supervisors of the date of September 9, 1936, directing the sale of the land involved here on October 19, 1936, unless the facts of the case at bar and
the cited cases are materially different. This justifies a detailing of the facts. In the Smith case, the sale was ordered by the board at the July meeting of the board and the sale was made on August 1st. In the above case, there was ample time for a sale at the date fixed in September for sales. The advertisement could be made very easily to sell the land on the third Monday of September. Everything essential to a valid sale could be done and a valid sale made on the date fixed by law, to-wit: the third Monday in September. In the White case, the board of supervisors at its May term, 1932, ordered the sale there involved on the first Monday in June. There was ample time to do all that was necessary to make a valid sale on the third Monday of September. But in the case at bar the order was made on September 9, 1936. On that date it was an impossibility to validly advertise the lands in question for sale on the third Monday in September. Both of the statutes authorizing the order, Sections 9926 and 9928 (then Chapters 188 of Laws of 1934 and 150 of the Laws of 1936, Section 3252 of the Code of 1930), require three weeks' advertisement. A valid sale on the third Monday of September was on September 9th an impossibility. And the order itself fixed the third Monday in October as the day for the sale. The third Monday in September, 1936, fell on the 21st day of that month. It is not, therefore, physically possible to advertise the land in question for a sufficient length of time on the 9th, the day of the board's order, or the 10th and validly sell same on September 21st. The board well knew this. The statutes authorizing the board to fix the date of sale contain no limitation on the power of the board in such a case as we have here to order the sale where it appears that no valid sale could be made on the days fixed by law for such sales. It is true that the language of this court in the two cited cases may be construed to the contrary. But, we submit, when a board of supervisors, confronted with a situation as in the case at bar, desires to sell the lands for the taxes and at a
time when it would be impossible to advertise in a lawful manner the lands for sale on the date fixed by law and orders a sale as authorized by statute, they are acting within their lawful rights and the order is binding.
We have no such factual situation in the case at bar as existed in the White and Hendrix cases. But to hold the case now before the court to be within the condemnation of the two cases would be equivalent to writing into the statutes the words "provided the order is entered after the third Monday in September."
We have no criticism to offer of the holding of the court in the two cited cases. Our objection is to an arbitrary holding, if one has been made, that a board of supervisors must wait until the third Monday in September has passed before it may order a sale when at the time of the order it would be impossible to validly sell the land on the third Monday of September. We do not think this court intended to so hold in the cited cases. We submit that in the opinions referred to the limitation on the board's power is not its power to order where it is impossible to sell on the last legal date but upon the power to sell before the third Monday in September. In other words, the opinions are to the effect that no sale may be made until the third Monday of September has passed. The construction appellee seeks to place on the statutes is that regardless of the time of the order, whether at a tim when possible or impossible of a valid sale on the last legal date, the order is void as being premature.
It is next said that the sale was void for the reason that the lands involved were in the Montgomery Common School District and that at a special meeting of the county school board an order was entered transferring the lands to the Powers Consolidated School District; that this order was void because the minutes failed to show the jurisdictional facts and particularly that the call of the meeting was not set out and the land was not described by section, township and range. This, it is alleged, became material because in the taxes not paid there was
included a two-mill levy for the support and maintenance of the Powers school. It is alleged that for this reason no legal lien was on this land. Appellee admits that she did not offer to pay the legal portion of the tax, assuming that a portion was illegal.
Assuming for the sake of the argument that the inclusion of the Montgomery District in the Powers District was void, still we have here a purely collateral attack on a school district. The most that can be said from the standpoint of appellee is that the district resulting from the inclusion of the Montgomery district created a de facto district.
56 C.J. 254, Sec. 11.
Appellee relies upon the cases of Dogan v. Griffin, 51 Miss. 782 , and Shattuck v. Daniel, 52 Miss. 834 , as condemning the sale here involved. The cases hold as appellee contends. In 1877 the effect of the decisions in the Dogan and Shattuck cases was nullified by Section 10 of the Laws of 1877, which in the case of a partially void levy requires the taxpayer to tender before sale that portion of the tax which is valid. Otherwise, the taxpayer after sale would not be permitted to set up that infirmity.
See Carter v. Hadley, 59 Miss. 130 ; Corburn v. Crittenden, 62 Miss. 125 ; Code of 1880, Secs. 523, 525; Code of 1930, Secs. 3256, 3273.
The sale was not void because no effort was made to pay the taxes whose levy and assessment were valid.
J.R. Buchanan, of Laurel, for appellee.
The tax sale of the land in suit was made on a date not fixed by law, and without a proper and legal order of the board of supervisors passed at a time when the board had jurisdiction to act in the matter.
Monroe County v. Strong et al., 78 Miss. 565 , 29 So. 530; Briscoe v. Buzbee, 163 Miss. 574 , 143 So. 407 , 887; Smith v. Hendrix, 181 Miss. 229 , 178 So. 819 ; White v. Noblin, 183 Miss. 92 , 183 So. 914 ; E.L. Bruce Co. v. Smallwood,, 21 So. 247; West Carroll v. Gaddis, 34 La. Ann. 928; Code of 1930, Sec. 214 (Code of 1942, Sec. 2890); Code of 1930, Sec. 3252 (Code of 1942, Sec. 9928); Laws of 1936, Chap. 150 (Code of 1942, Sec. 9926); Attorney General's opinions on page 425 of Volume 7 of the Code of 1942; Constitution of 1890, Sec. 170; 4 American Eng. Ency. Law, p. 375.
The tax sale of the land in suit, dated October 19, 1936, for 1935 taxes, was made for a tax levy which included a special levy for the support and maintenance of the Powers Consolidated School District, which such levy had never become a lien on the land in suit.
Belden Consolidated School District et al. v. Lee County et al., 160 Miss. 157 , 133 So. 225 ; Caston et al. v. Wilkinson County School Board et al., 170 Miss. 242 , 154 So. 714 ; Greene v. Sparks, 174 Miss. 71 , 163 So. 895 ; Leech et al. v. Wileman et al., 179 Miss. 836 , 177 So. 12 ; Botts et al. v. Prentiss County School Board, 175 Miss. 62 , 166 So. 398 ; Gamble v. Witty, 55 Miss. 26 ; Hodge Shipbuilding Co. et al. v. City of Moss Point, 144 Miss. 657 , 110 So. 227 ; Davis v. Vanarsdale, 59 Miss. 367 ; Nelson v. Abernethy, 74 Miss. 164 , 21 So. 150; Griffin v. Ellis, 63 Miss. 348 ; Dingey v. Paxton, 60 Miss. 1038 ; Newman v. J.J. White Lumber Co., 162 Miss. 581 , 139 So. 838 , 840; Code of 1871, Sec. 1700; Code of 1880, Sec. 525; Code of 1930, Secs. 3256, 3273, 3275, 6584; sub-pars. b, d.
Tender of that part of the taxes not considered as invalid prior to the sale as a prerequisite to attack the validity of the tax sale was not necessary. No tender is necessary in any case where it is known that the tender will not be accepted when offered.
Byers et al. v. McDonald, 99 Miss. 42 , 54 So. 664; McLain v. Meletio et al., 166 Miss. 1 , 147 So. 878 ; Code of 1930, Sec. 3229.