Doe, ex dem. B. L. Jones v. L. P. C. Burford, 26 Miss. 194

Mr. Justice Fishek delivered the opinion of the court. This was an action of ejectment tried in the circuit court of De Soto county, which resulted in a verdict and judgment for ’the defendant. The plaintiff on the trial offered to read as evidence to sus tain his title, a deed made, by the tax collector of said county, in April, 1848, for the land, in controversy, to the plaintiff’s lessor. This deed was, by the court, rejected as evidence, and its rejection presents the only error assigned by the plaintiff’s counsel.

To understand correctly the action of the court, we must ascertain the precise attitude of the case at the time the deed was offered as evidence. Facts which appropriately belonged to the defendant’s evidence, and should have been by him introduced as such, appear to have been admitted by the parties, and introduced as evidence before the deed was offered; and it was considering the deed in connection with this evidence, that induced the court to reject it. These facts are as follows: 1. The land was assessed in 1846 as the property of one John H. Jones.

He, early in January, 1847, paid to the collector the amount of State tax assessed thereon, and at the same time tendered to him the amount of the county assessment (being three fourths of the State assessment), which the collector refused to receive, on the ground that he was enjoined from so doing. The bill and injunction are introduced as evidence, from which it appears, that Jones, the owner of the land, was no party to either of them.

It was next shown, that the order of the board of police of De Soto county, levying the county tax for the year 1846, was made on the 14th day of September, 1846, at a special meeting of the board, convened without previous notice, as required by the statute. ' ' The injunction having been dissolved, and the county tax on the land remaining unpaid, the land was sold by the collector, for the purpose of satisfying the tax, in April, 1848, when it was purchased by the plaintiff’s lessor. The points now presenting themselves for consideration on the foregoing statement of facts are, 1st.

That the owner of the land having once, within the time prescribed by law, tendered to the collector the amount of the county assessment, he could not legally make a sale, without first, making a demand of the tax claimed. 2d. That the order itself- is void, for the want of notice of the time of holding the special term of the board, and on account of the discrimination between the tax imposed on the real estate, and that upon the personal estate of the county.

In regard'to the first point, it must be borne in mind, that Jones, the owner of the land, not being a party to the proceedings in the vice-chancery court, was not required to take notice of the order dissolving the injunction or dismissing the bill. Having within the time required by law tendered the amount of the county assessment to the proper officer, he performed, to the letter of the law, his duty as a citizen. He was then certainly, up to the order of the court dissolving the injunction, in no default in paying, or offering to pay, the full amount of his tax.

To authorize the collector to sell land, by reason of the non-payment of taxes, in any case, the tax payer must be in default in performing his duty, as required of him by law. Here the tax payer was in no default. We have seen, that up to the moment of the dissolution of the injunction, he had been guilty of no violation of duty in this respect. Could the order of dissolution have the effect of placing him in default in making payment?

Clearly not; he was not a party to the proceedings, and was not required to take notice of the order, which restored the collector to the powers which he possessed before the injunction was granted. The inquiry then naturally arises, that if the party was in no default before the injunction was dissolved, and if the dissolution did not have that effect, what has produced this breach, of duty in failing to pay the taxes ? This question suggests its own answer. It was indispensably necessary for the collector to make a demand of the tax, before he could sell the land.

This was the only way by which the party could be placed in such default, as would give the collector authority to sell the land. This demand not having been made, the sale, in our opinion, is void. The other questions may be determined merely by a reference to the statute.

After fixing the times for holding the regular terms of boards of police, the statute then provides, as follows, for special terms: “ That the president of the board may call a special meeting thereof, whenever it may be necessary, upon his giving ten days’ notice of said meeting, by advertisement, posted at the door of the court house of his county.” Hutch. Code, 710, § 5. It is clear from this language, that a meeting-can only be convened upon notice being given as required by the statute.

The president of the board has the power, upon a certain condition, to order a special meeting of the board; and this condition must be complied with to make the meeting legal, or, in other words, to make it a board of police.