Back assessment under the circumstances of this case would be contrary, in my opinion, to the holding in Stern v. Parker. In that case, the original opinion [200 Miss. 27, 25 So. 2d 790] said: "The land was assessed in its entirety, and that means all of its assessable estates, by this unit assessment. This, they could and should have had corrected then, but did not. . . . The land had appeared on the assessment rolls by its definite governmental description, and had thus come under the eyes of the proper assessment and taxing authorities, and by such descriptions the land had been assessed, and sold for non-payment of the taxes. This was sufficient to carry with it the title of the entirety of the land, both above and below the surface for the reasons stated, and in harmony with our statutes and decisions."
The Suggestion of Error [200 Miss. 27, 27 So. 2d 402] used this language: "For more than a generation, and especially since the decision in Eureka Lbr. Co. v. Terrell, Miss., 48 So. 628, it has been understood as the settled rule in this State that when a parcel of land has been assessed by a valid surface description, as for instance by the government survey, without any reservations or exceptions or limitations either in the particular assessment or elsewhere on the roll, this would be to the same effect, so far as the description is concerned, as if it were a private deed of conveyance and would include every interest in the land so described and not only the surface but every estate, horizontal or otherwise, and *Page 795 whether above or below the surface, although separately owned."
And to make certain the exact basis of the rule, the Court further said: "Here the assessment was of the appropriate surface description without any reservation or qualification or limitation appearing anywhere on the assessment rolls. It included therefore appellant's horizontal estate and inasmuch as they made no objections in writing as required by Section 9790, Code 1942, the assessment so made became unassailable as to the matter in pais upon which appellants seek now to rely. And this was the ultimate basis upon which our original opinion in this case is founded, as an unbiased examination of it will disclose."
There is no possibility of misunderstanding as to the foundation of the rule. The reference in the original opinion to the duty of the owner to have his land assessed was a mere comment upon the comparative duties and rights of the owner, the assessor and the public. It was not an effort to define an act, or omission, which would constitute the vehicle for transmission of title to land under the doctrine of estoppel. The true foundation of the rule is well grounded in reason and our jurisprudence, as is shown by the clear language above quoted and the authorities cited in the opinions. But, it would never do to say an owner is estopped to attack an invalid tax sale, or assert his taxes have been paid, simply because he failed to have his property assessed, in the one case, or, in the other case, that someone else, purposely or inadvertently, had paid his taxes for him. Such payment may be a matter of adjustment between the owner and the payor, but it is not a matter of which the State can take advantage. *Page 796