Opinion. [6] The burden was on the plaintiffs to establish a legal title to and a right to the possession of the land in controversy. A careful examination of the maps, in the light of all the facts and circumstances shown in evidence, satisfies us that the evidence was not sufficient to warrant the jury in finding that the plaintiffs' location of the 188 acre patent is correct. [7] This being a writ of error to a judgment of the trial court setting aside the verdict of the jury, the plaintiffs in error cannot complain of the rulings of the court on the admission of illegal evidence, or the giving of improper instructions, since it clearly appears that they have not been prejudiced by such rulings. v. White, 129 Va. 621, 106 S. E. 350. White We need not consider further the assignments of error, as the questions we have discussed are decisive of the case. The verdict of the jury was plainly contrary to the evidence and without sufficient evidence to support it, and the trial court was fully warranted in setting the same aside. Upon the evidence, the judgment complained of is right and will be affirmed. Affirmed. Syllabus. Richmond. ALEXANDER V. COMMONWEALTH. November 15, 1923. 1. APPEAL AND ERROR-Harmless Error-Failure to Permit Filing of Answer-All Defenses Considered-Case at Bar.-In the instant case, a suit against appellant to enforce a lien for taxes, the answer of appellant was rejected because not filed within the time required by section 6122 of the Code of 1919. The bill was not taken for confessed as to the appellant. On the contrary, the case was heard upon his deposition, amongst others, and upon his exception to the report of the master. Every defense set up in his answer was set up more in detail in his deposition, and his exceptions to the master's report, which was acted upon by the court, set up every defense made in his answer. He was fully heard on the merits of his contention, both by the commissioner and by the court, and could not have been injured by the ruling on the filing of his answer. Held: That if the refusal to permit appellant's answer to be filed was error, it was harmless. 2. TAXATION-Assessment—Void or Improper Assessment-Assessment of Rural Lands as Mineral Lands-Adequate Remedy at Law-Case at Bar. In the instant case, a suit to enforce a lien for taxes against land of the appellant, it appeared that the assessing officers had improperly assessed the land as mineral land, whereas, as a matter of fact, the land contained no minerals of value and should have been assessed as ordinary mountain land. Appellant contended that this assessment was not simply erroneous but void and illegal, and that a court of equity, in which he had been impleaded by the Commonwealth, would relieve against it. Held: That there was no merit in this contention as appellant had a very simple, full and adequate remedy provided by the statute (section 2237, Code of 1919) for the correction of erroneous assessments, and the assessment, although improper, was not void. 3. ESTOPPEL-Inconsistent Positions in the Same or Successive Suits.-A party will not be permitted to occupy inconsistent position in the same or in successive suits between the same parties. 4. ESTOPPEL-Inconsistent Positions in the Same or Successive Suits-Correction of Erroneous Assessments-Case at Bar.-In the instant case, a suit to enforce a lien on appellant's lands for taxes, appellant con Syllabus. tended that the assessment was void, and that as he had been impleaded by the Commonwealth in a court of equity, the court would relieve against it. Appellant had a simple and complete remedy under section 2237 of the Code of 1919 to correct the erroneous assessment, and he had availed himself of that remedy for assessments of other years, when he had alleged that the land was improperly assessed but in no way intimated that the assessment was a void assessment. Held: That in the present suit appellant would not be allowed to occupy the inconsistent position that the statute for the correction of erroneous assessments did not apply. 5. TAXATION-Assessment-Mineral Lands-Annual Assessment.-Section 172 of the Constitution of 1902 provides that the General Assembly shall provide for the special and separate assessment of all coal and other mineral land. Pursuant to this provision, sections 2234-2240, Code of 1919, provided for annual assessments of mineral lands. Held: That the special and separate assessment of "coal and other mineral land" is made under section 172 of the Constitution, and not under section 171, which provides for the assessment of land generally only once in every five years, and the legislature was not restrained by section 172 of the Constitution as to the time and manner of assessment. 6. TAXATION-Assessment-Mineral Lands-Annual Assessment of Surface-Case at Bar.-Whether or not, in view of the addition to section 2235 of the Code of 1919 by the revisors and the revisors' note upon that section, the value of the surface of mineral land can be changed, except upon reassessment every five years, it was not necessary to determine in the instant case, as there had been no change in the surface valuation of the land in question since 1915, except a slight reduction. If the act of 1912, carried into the Code of 1919 as sections 2234 to 2240, allowed an annual assessment of the surface of mineral lands not authorized by section 171 of the Constitution of 1902, and was to that extent unconstitutional, still the appellant in the instant case was not injured by it, as the assessment of 1915 still remained in force and the tax was validly imposed thereunder. 7. TAXATION-Assessment of Mineral Lands-Assessing Officers to Determine Whether Land Taxable.-Whether or not land is taxable as mineral land is a question to be decided in the first instance by the assessing officers, subject to review and correction under section 2237 of the Code of 1919. Jurisdiction is conferred on these officers to decide that question, and, if they commit errors, the statute provides a simple method of correction, but their action is not void and is not subject to collateral attack. 8. TAXATION-Assessments-Collateral Attack.-The officers whose duty it is to fix the assessments, whether as original assessors, or as boards of equalization and review passing upon the work of the assessors, Opinion. act in a judicial or quasi judicial capacity, and their findings, when made in good faith and in the exercise of an actual jurisdiction, are like the judgment of courts, secure from collateral attack. Findings which for fraud or lack of jurisdiction are void may be collaterally attacked, but an assessment will not be rendered void, and thus exposed to collateral attack, by irregularities or errors honestly committed in the exercise of official discretion. 9. TAXATION-Suit in Equity to Enforce Lien for Taxes-Equitable Defenses. -In the instant case, a suit in equity to enforce a lien for taxes against land of appellant, it was urged on behalf of appellant that, as the Commonwealth had impleaded him in a court of equity, that court would put the complainant on terms of allowing equitable defenses in the way of abating an admittedly erroneous and excessive demand. Held: That there was no force in this contention, as the Commonwealth did not go into the court under its general equity jurisdiction. The jurisdiction invoked was purely statutory, and is given without condition. There is no appeal to the conscience of the chancellor, but an application for the enforcement of a plain statutory remedy unconditionally conferred, and the chancellor has no power to impose conditions. 10. EQUITY-Suit to Enforce Lien of Judgment-Suit to Enforce Lien for Taxes -Collateral Attack.-A suit in equity to enforce a lien for taxes is very similar to a suit in equity to enforce the lien of a judgment on land. In a suit in equity to enforce the lien of a judgment, the validity of the judgment cannot be called in question, as that would be a collateral attack. So, in a suit in equity to enforce the lien for taxes the taxpayer cannot assail the validity of the assessment where the assessment is not void, but voidable, as that, too, would be a collateral attack. Appeal from a decree of the Circuit Court of Rockingham county. Decree for complainant. assigns error. The opinion states the case. Rudolph Bumgardner, for the appellant. Defendant Affirmed. John R. Saunders, Attorney-General, J. D. Hank, Jr., Assistant Attorney-General, Leon M. Bazile, Second Assistant Attorney-General, E. Warren Wall and J. Vaughan Gary, for the Commonwealth. Opinion. BURKS, J., delivered the opinion of the court. This was a suit in chancery by the Commonwealth of Virginia brought in June, 1917, against the appellant, John A. Alexander, to enforce a lien for taxes for the year 1916 on a tract of 23,400 acres of land, and the underlying minerals, and on the minerals underlying another tract of 1,500 acres. There is no controversy as to the latter and it may be dropped from further consideration. The bill was subsequently amended to introduce new parties who were supposed to have an interest in, or a lien upon, the land. In May, 1918, there was an order for an account of liens and their relative priorities. In June, 1918, appellant appeared by counsel and suggested the pendency in the Circuit Court of Augusta county of an injunction suit seriously affecting his interest in the 23,400 acre tract, and in August, 1918, an order was made directing the master, to whom the case had been referred for account, not to report on the merits of the controversy in the suit in Augusta county. All further proceedings were thereupon suspended in the present suit until the latter part of 1920. In the meantime the controversy in the Augusta suit was decided in favor of the appellant. In December, 1920, the master, after notice to all the parties, began taking proof on the matters referred to him. His report was not filed till April, 1921. In his report he found the appellant indebted to the Commonwealth for taxes from 1915 to 1920, both inclusive, and for each of said years except 1920 the taxes were not only upon the assessed value of the surface, but also upon the assessed value of the underlying minerals and upon the improvements, machinery and fixtures on the land. The aggregate amount of all these taxes, including penalties and interest, was ascertained to be $4,609.48. |