The record before us contains the theory of an agreed simultaneous trial of two suits in the Chancery Court
of Wayne County. In both suits, appellees, as complainants, sought cancellation of tax sales of appellee, Foote's, fractional oil, gas and mineral interests, assessed and sold as fractions of two separate tracts, in 1941 for Foote's default in payment of his 1940 taxes on said fractions in each whole tract of oil, gas and minerals. Confirmation of appellees' title was also prayed. Appellant, in each case, made his answer a cross-bill, seeking cancellation of the claims of appellees to these same fractional interests of the entire mineral estate which he had bought at the aforesaid tax sales, claiming the sales to be valid. Appellees, on the other hand, denied and attacked the validity thereof.
There were several defendants in addition to appellant here, but they have disappeared from the record in one way or another, leaving appellant as the sole prosecutor of this appeal.
In one suit, relief was sought to cancel the cloud of appellant's tax purchase, and to confirm appellees' titles and claims in and to an undivided one-half interest in the oil, gas and other minerals in and under NW 1/4 of NW 1/4 and SW 1/4 of NW 1/4 of Section 31, Township 10 North of Range 8 West in said county, belonging to Alfred Foote. There was an over-all mineral lease to Gulf Refining Company, and a trust deed from Alfred Foote and Urban B. Hughes, on their interests, for benefit of the Commercial National Bank and Trust Company of Laurel. But, in view of the conclusion we have reached, it is not necessary to discuss further their connection with the situation.
In the second suit, the same relief was asked by the respective parties, involving, however, different land, and an undivided one-fourth interest in and to the oil, gas and other minerals in and under SW 1/4 of NE 1/4 and NE 1/4 of SE 1/4 of Section 3, Township 6 North of Range 7 West in Wayne County.
The gravamen of the complaint in both suits was that the tax assessor assessed these fractional interest against
Alfred Foote for the year 1940, under the provisions of Section 9770, Code 1942, Chapter 185, Laws 1932, as construed in Stern et al. v. Parker, 200 Miss. 27, 25 So.2d 787, but completely ignoring the requirements of Section 3148, Code 1930, now Section 9772, Code 1942. The pertinent part of this latter section is that "if more than one person shall claim to be the owner of the same tract or parcel of land the assessor shall so state in his assessment roll, and the tax collector shall only collect the taxes on one assessment." Appellees contended, therefore, that the latter statute prohibited the separate assessment and sale of an undivided fractional interest in real estate separate and apart from the other fractional interests in such real estate. The chancellor sustained this view, and we think correctly so.
There are other contentions in support of their right to the relief sought by appellees, and sustained by the chancellor, but we pretermit discussion of them, as, in our judgment adjudication of the one issue described, supra, will settle both cases.
In 1941, these fractional interests of appellee Foote were sold for non-payment of his taxes of 1940, and appellant Hendrix became the purchaser. It is this tax sale, which is at issue in the two suits. There is considerable evidence in the record, and much argument in the briefs, as to the claimed redemption thereof by appellee Foote, but, as stated, it is not necessary for us to reach that precise question here. The descriptions of the two tracts at issue as assessed, entered on the tax rolls, and sold, are respectively as follows: "1/2 of min. Int. NW NW SW NW Sect. 31, Town. 10, Range 8", and "1/4 Min. Int. SW NE NE SE, Sect. 3, Town. 6, Range 7." The surface was owned and separately assessed to another.
Section 9770, Code 1942, Chapter 185, Laws 1932, in part provides that all oil, gas, and mineral rights "shall be assessed and taxed separately from such surface rights and interests in said real estate, and shall be sold for
taxes in the same manner and with the same effect as other interests in real estate are sold for taxes."
Appellee Foote owned these mineral interests in common with others, who were owners of the other half thereof in the one case, and of the other three-fourths in the companion case. It seems to us, therefore, that the assessment and tax sale were both void because violating Sections 9772, Code 1942, Section 3148, Code 1930, quoted supra. Parties owning undivided interests in underlying minerals in land are tenants in common. Wight v. Ingram-Day Lumber Company, 195 Miss. 823, 17 So.2d 196. We held in Stern et al. v. Great Southern Land Company, 148 Miss. 649,114 So. 739, that tenants in common of deposits of clay, oil, and minerals under the surface of the land may have partition thereof, where susceptible of ownership and conveyance from balance of estate. See Stern v. Parker, supra, holding the surface and subsurface minerals to be so susceptible. So, under our decisions the situation before us was one of tenancy in common.
The tax lien is on the land, every part of it. A fractional undivided interest could not be redeemed in case of a tract of land containing such interests, at a tax sale, because the tax liability, like the lien, extends to every acre of the land taxes, and the attempted redemption of an undivided fraction therein would result in a simple credit on the total tax due on the entire tract, unless in such redemption the tax due on the whole tract and all undivided interests therein were paid. We are not here dealing with payment of taxes in installments, under statute permitting that method, where assessment is properly made, but with assessment and sale of fractional interests in the same parcel of land.
The tax assessor may assess lands to the unknown owners thereof, but surely no one would contend he could lawfully assess many different undivided fractions in a piece of land, and balance of the undivided interests to
named owners. He is required to state in his assessment roll that more than one person claims to be the owner of the same tract. Thereupon, "the tax collector shall only collect the taxes on one assessment." Section 9772, Code 1942. This seems clear and plain to us, and the assessments and sales here being violative thereof, and the statute being mandatory, the appellant acquired no title by his purchase at the tax sale. An assessment of land for taxes described as a fractional interest therein does not so describe the land as to identify the fractional interest, since such interest is undivided and extends to and is an integral part of the whole tract.
The reasonableness of this interpretation of the Statute, Section 3148, Code 1930, Section 9772, Code 1942, is further supported by our decisions dealing with the right of contribution, which one co-tenant may require of the others, where he pays the taxes on the entire tract for the owners of undivided interests therein. We held in Davidson v. Wallace,53 Miss. 475, that where one tenant in common paid the taxes on the land to prevent a sale of it, he or his assigns, were entitled to and might enforce a lien on the interests of the co-tenant for the amount he should have paid; and this, in the absence of any agreement on the subject. See also Harrison v. Harrison, 56 Miss. 174
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The record before us contains the theory of an agreed simultaneous trial of two suits in the Chancery Court
of Wayne County. In both suits, appellees, as complainants, sought cancellation of tax sales of appellee, Foote's, fractional oil, gas and mineral interests, assessed and sold as fractions of two separate tracts, in 1941 for Foote's default in payment of his 1940 taxes on said fractions in each whole tract of oil, gas and minerals. Confirmation of appellees' title was also prayed. Appellant, in each case, made his answer a cross-bill, seeking cancellation of the claims of appellees to these same fractional interests of the entire mineral estate which he had bought at the aforesaid tax sales, claiming the sales to be valid. Appellees, on the other hand, denied and attacked the validity thereof.
There were several defendants in addition to appellant here, but they have disappeared from the record in one way or another, leaving appellant as the sole prosecutor of this appeal.
In one suit, relief was sought to cancel the cloud of appellant's tax purchase, and to confirm appellees' titles and claims in and to an undivided one-half interest in the oil, gas and other minerals in and under NW 1/4 of NW 1/4 and SW 1/4 of NW 1/4 of Section 31, Township 10 North of Range 8 West in said county, belonging to Alfred Foote. There was an over-all mineral lease to Gulf Refining Company, and a trust deed from Alfred Foote and Urban B. Hughes, on their interests, for benefit of the Commercial National Bank and Trust Company of Laurel. But, in view of the conclusion we have reached, it is not necessary to discuss further their connection with the situation.
In the second suit, the same relief was asked by the respective parties, involving, however, different land, and an undivided one-fourth interest in and to the oil, gas and other minerals in and under SW 1/4 of NE 1/4 and NE 1/4 of SE 1/4 of Section 3, Township 6 North of Range 7 West in Wayne County.
The gravamen of the complaint in both suits was that the tax assessor assessed these fractional interest against
Alfred Foote for the year 1940, under the provisions of Section 9770, Code 1942, Chapter 185, Laws 1932, as construed in Stern et al. v. Parker, 200 Miss. 27, 25 So.2d 787, but completely ignoring the requirements of Section 3148, Code 1930, now Section 9772, Code 1942. The pertinent part of this latter section is that "if more than one person shall claim to be the owner of the same tract or parcel of land the assessor shall so state in his assessment roll, and the tax collector shall only collect the taxes on one assessment." Appellees contended, therefore, that the latter statute prohibited the separate assessment and sale of an undivided fractional interest in real estate separate and apart from the other fractional interests in such real estate. The chancellor sustained this view, and we think correctly so.
There are other contentions in support of their right to the relief sought by appellees, and sustained by the chancellor, but we pretermit discussion of them, as, in our judgment adjudication of the one issue described, supra, will settle both cases.
In 1941, these fractional interests of appellee Foote were sold for non-payment of his taxes of 1940, and appellant Hendrix became the purchaser. It is this tax sale, which is at issue in the two suits. There is considerable evidence in the record, and much argument in the briefs, as to the claimed redemption thereof by appellee Foote, but, as stated, it is not necessary for us to reach that precise question here. The descriptions of the two tracts at issue as assessed, entered on the tax rolls, and sold, are respectively as follows: "1/2 of min. Int. NW NW SW NW Sect. 31, Town. 10, Range 8", and "1/4 Min. Int. SW NE NE SE, Sect. 3, Town. 6, Range 7." The surface was owned and separately assessed to another.
Section 9770, Code 1942, Chapter 185, Laws 1932, in part provides that all oil, gas, and mineral rights "shall be assessed and taxed separately from such surface rights and interests in said real estate, and shall be sold for
taxes in the same manner and with the same effect as other interests in real estate are sold for taxes."
Appellee Foote owned these mineral interests in common with others, who were owners of the other half thereof in the one case, and of the other three-fourths in the companion case. It seems to us, therefore, that the assessment and tax sale were both void because violating Sections 9772, Code 1942, Section 3148, Code 1930, quoted supra. Parties owning undivided interests in underlying minerals in land are tenants in common. Wight v. Ingram-Day Lumber Company, 195 Miss. 823, 17 So.2d 196. We held in Stern et al. v. Great Southern Land Company, 148 Miss. 649,114 So. 739, that tenants in common of deposits of clay, oil, and minerals under the surface of the land may have partition thereof, where susceptible of ownership and conveyance from balance of estate. See Stern v. Parker, supra, holding the surface and subsurface minerals to be so susceptible. So, under our decisions the situation before us was one of tenancy in common.
The tax lien is on the land, every part of it. A fractional undivided interest could not be redeemed in case of a tract of land containing such interests, at a tax sale, because the tax liability, like the lien, extends to every acre of the land taxes, and the attempted redemption of an undivided fraction therein would result in a simple credit on the total tax due on the entire tract, unless in such redemption the tax due on the whole tract and all undivided interests therein were paid. We are not here dealing with payment of taxes in installments, under statute permitting that method, where assessment is properly made, but with assessment and sale of fractional interests in the same parcel of land.
The tax assessor may assess lands to the unknown owners thereof, but surely no one would contend he could lawfully assess many different undivided fractions in a piece of land, and balance of the undivided interests to
named owners. He is required to state in his assessment roll that more than one person claims to be the owner of the same tract. Thereupon, "the tax collector shall only collect the taxes on one assessment." Section 9772, Code 1942. This seems clear and plain to us, and the assessments and sales here being violative thereof, and the statute being mandatory, the appellant acquired no title by his purchase at the tax sale. An assessment of land for taxes described as a fractional interest therein does not so describe the land as to identify the fractional interest, since such interest is undivided and extends to and is an integral part of the whole tract.
The reasonableness of this interpretation of the Statute, Section 3148, Code 1930, Section 9772, Code 1942, is further supported by our decisions dealing with the right of contribution, which one co-tenant may require of the others, where he pays the taxes on the entire tract for the owners of undivided interests therein. We held in Davidson v. Wallace,53 Miss. 475, that where one tenant in common paid the taxes on the land to prevent a sale of it, he or his assigns, were entitled to and might enforce a lien on the interests of the co-tenant for the amount he should have paid; and this, in the absence of any agreement on the subject. See also Harrison v. Harrison, 56 Miss. 174, to the effect that a tenant in common purchasing at the tax sale thereof does so for the common benefit of his co-tenants, but that the common property is chargeable with the purchase money expended by him at the tax sale.
Section 9775, Code 1942, Section 3151, Code 1930, requires that "In assessing land, a description of it as a part of a designated tract or division, shall be held to embrace such part as is the subject of separate ownership, as one tract or division, whether owned by one or several jointly; and when part of a designated tract or division shall be sold for taxes, the sale shall pass the title of such part as was the subject of such separate ownership
when it was assessed; and the sale of a specified number of acres of a tract containing more, or a specified portion of a tract, shall pass an undivided interest in the whole tract equal to the proportion which the number of acres or portions sold bears to the whole tract; and when part of a known tract or division of land is assessed by a description which identifies it, any other part of it which is assessed but not so identified, shall be held to embrace all of such tract or division not included in the part identified; . . ." This statute deals with identifiable parts of tracts of lands, whereas the subject before us involves fractional interests in lands, not capable of identification, separate and apart from any other acre in the tract. This statute must be read in harmony with Section 9772, Code 1942, Section 3148, Code 1930, which provides that the record of assessment show that several different owners have interest in the tract, and the tax collector shall "only collect the taxes on one assessment." Section 9775, Code 1942, supra, concludes that "parol testimony shall always be admissible to apply a description of land on the assessment roll, or in a conveyance for taxes, where such testimony will show what land was assessed and sold, and there is enough in the description on the roll or conveyance to be applied to a particular tract of land by the aid of such testimony." A fractional interest in land is not a particular tract of land, and is incapable, as stated, of separate allocation to any portion of the parcel of land, since it pervades all of it.
Section 9775, Code 1942, was Section 3776, Code 1892, when we decided Illinois Central Railroad Company v. Le Blanc, 74 Miss. 650, 651, 21 So. 760, 761. That case involved this statute, and the Court there held that in an action of ejectment on a tax collector's deed and a decree confirming the same, wherein the land is described as "fractional 38 acres" in a certain forty acre tract assessed to a certain party, it is admissible to offer in evidence the assessment rolls, tax receipts and deeds which
identify the remaining two acres, on which the taxes were paid, and thereby identified the land sold for taxes. It must still be borne in mind that undivided shares in land cannot be described separately from any part of the land, or the whole tract.
In Stevenson et al. v. Reed, 90 Miss. 341, 43 So. 433, it was said that a sale of an undivided one-half interest in an eighty acre tract was illegal. Furthermore, we have said that: "We have no statute authorizing a tax collector to . . . apportion the different undivided interests to any number of parties who may claim such interests therein and sell such undivided interests, and we think to do this would be bad policy and illegal, and in all instances he should collect the tax on the land, and not on any individual, undivided, inseparable, interest therein." Fountain v. Joullian, 110 Miss. 812, 71 So. 2.
The wisdom of the decision just quoted is demonstrated upon contemplation of the fact that sometimes these fractional interests become almost infinitesmial. In such case, the courts nave adopted the numerous party rule in litigations, holding that process on a representative group is sufficient service upon all. Floreen v. Saucier et al., 200 Miss. 428, 27 So.2d 557. In that case there were fifteen hundred heirs of the common ancestor, all with interests in the land. Can it be reasonably maintained that each of these fractional interests in the land could be separately assessed, with separate tax collections, separate sales, separate conveyances, and separate redemptions, in view of Section 3148, Code 1930, Section 9772, Code 1942? We think not. From a practicable point of view, it could not be justified, aside from the statute, which must be construed in a practical way. Here, the statute, Section 3148, Code 1930, Section 9772, Code 1942, in such cases would not permit assessment and sale of fractional interests, nor require the names of all owners to be listed on the assessment rolls and tax record, but the assessor is merely required: "if more
than one person shall claim to be the owner of the same tract or parcel of land the assessor shall so state in his assessment roll, . . ." He may name one or more of the tenants in common, or assess to unknown owners, and make the notation described in the statute. The assessment is a judgment, and a lien on the land, and this would be sufficient, for a sale of the whole tract, if the taxes are not paid thereon, as the sheriff is permitted by the statute to "only collect the taxes on one assessment."
We are here dealing with statutes and decisions thereon in force prior to the passage of the Documentary Stamp Act, Chapter 409, Laws 1946, and what we say is not in construction of that Act, which was passed after the matters here adjudicated came to pass.
The chancellor so decreed here, and his decrees cancelling the claims of appellant under the two tax sales of the lands involved, as clouds upon the titles of appellees, and confirming their titles thereto, accordingly, are affirmed.
Affirmed.
BRIEFS ON SUGGESTION OF ERROR