The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1889-06-09

VIII ullhO.
The Constitution OF the State as we'll MS
of the United States provides that no man
shall be deprived OF his property except by
due process OF law. | am satisfied that to
deprive man OF the title OF his lands by q
sale for the nonpayment of the taxes inn
posed thereon, II according to the value,
there must be an assessment OF value by
some officer appointed for that purpose,
levy OF the taxes legally imposed either by
the act of tho Legislature or by some body
of men authorized by tho Legislature to
make such levy, and :hcrc must be a sale
and conveyance by some officer authorized
by law to do so, and that for taxes then
due and unpaid, after the time allowed 10y
law for the payment thereof has expired,
anything else would not be by due process
of law, and which requirements the Legis-
lature cannot dispense with or cure 10y
any act passed by it,
The effect of the assessment and levy OF
the tax amounts to a judgment, and the
sale and conveyance for the nonpaymcut
OF the taxes has the effect to transfer the
title OF the owner to tho purchaser ut the
tax sale, in the same way that u sale and
conveyance by the Sheriff or Marshal un-
der an execution issued upon Judgment
to purchaser under execution sale.
Under the sales made under tho liqui-
dating lovce tax act of the Legislature, re-
ierrcd to in the bill, the tax was levied by
the Legislature ITSELF not upon the value
Of the land, but OF five cents per each acre
on q certain portion OF the land supposed
to be most benefited, and three cents per
aero upon the balance OF the land within
lat hn 1 Al
This required no assessment 10 ascertain
the value OF the land, and has been held
by the Supreme Court 10 bo valid levy,
aud u sale aud conveyance made for the
collection OF the tax 10 levied passed the
title to the purchaser, provided the tax
remained unpaid when thesslc was made,
and provided further that at the time the
title 10 the land was not held by the State.
II no one bid for the land, at this tax sale,
then il was struck off To the Board OF
Lovcc Commissioners, aud the deed was
made 10 them ~ purchasers, with author
ity, after the time Tor redemption had eX-
pircd, TO sell and convey the land 10 raise
funds with which to pay off aud discharge
the obligations due Tor the building of
the levccs aud keeping them in
rrpair prior TO the time stat
ed in tho liquidating lcvco act,
and which liability was evidenced by
bonds, with coupons. issued TO secure the
same. Tho effect OF the Limitation inn
posed by the net Of 1860, Of five vcars. rs
claimed, Is TO cat Oh all inquiry into the
irregularities OF the sales aud convcyanccs
made under the Liquidlting Lease act, but
not ~ to whether the land was subicc, to
be sold Tor tho taxes for its nonpaymcnt
or Tor other reasOn', such rs that 1t was
then owned 10y the State.
These questions are 80 complicated that
the rights OF the parties cannot bc settled
on demurrer to the bill, therefore this
| GROUND uf demurrer cannot prevail
Tho fifth aud sixth grounds Of demurrer
may be considered together, ~ they raise
substantially the same questions. The
! hUh alleges that the bill charges that
defendant claims title 10 tho Lands, made
| In 1876, aud the sixth that respondent
claims litle 10 the lands In controversy
under sales made under the act of Marc.
IA, 1894, aud that the hill fails TO show
wherein said titles arc invalid. or why ia,
statute Of Limitation Of three years IL no
legal anl effective.
The answer 10 these grounds OF domur-
rcr ~. that under the liberal rules already
stated, II * not required. While II ~ true
that In tho clsc ui Cook w. Friley, 81
Miss, It Is held that where the bill N illcd
to yet aside aud cancel particular convey
ancr 1t should hc set out IN the bill ~
fully aud particularly rs known 90 the
plradcr, hu, II b. not stated that the bill
! should point out the grounds ui It's iuyIl-
ility; but IL Is further held that 10 bill
| may be brought 10 dispose Ol any claim,
or prctcnse oi any right or title asserted OI
made, by the defendant, It follows that II
cannot be q ground OF demurrer 10 the
bill, that II does not set forth the title
sought 10 b. Cancelled, and that the com.
plant may bc against an assertion OF
claim, aud tho defendant must Bct forth
his claim, and make II good.
llut for the rules thus laid down by the
Supreme Court, aud which are sanciioncl
by the Supreme Court Of the United states
IN the cases before mentioned, the grounds
Of demurrer would be mllniainablc, but
under these rules they are not. Under the
| rules above stated, the seventh ground of
demurrer is not nniniaInablc. The eighth
| ground Of demurrer Is that the bill Tails 10
show a common title aud common Interest
between tho parties d'irnltnt Tho bill
does not show a separate aud distinct
interest, therefore The presumption Is that
the interest ~ a common one, at all events,
IL Is M specific ~ the rules OF pleading In
the ease requires. Therefore this ground
| Of demurrer Is not mnintainablc.
The ninth ground Of demurrer Is that
the bill docs not tender to the defendants
the taxes with interest paid by them.
The answer TO this ground Of demurrer
| u that no ascctlaiumcnt Of the taxes paid
by defendants has been had but the relief
prayed for In the bill will not DO granted
until the amount Of taxes aud interest duo
thereon shall have been asccrtaincd and
paid. 80 that this ground Of demurrer can
not be maintained.
The result Is that ia, demurrer must be
oycrrulcd, aud sixty days allowed defend.
ants In which 10 answer the bill % Of the
present term. u. A. HUI, Judge.