Bowers v. Chambers

53 Miss. 259 | Miss. | 1876

Campbell, J.,

delivered the opinion of the court.

This case presents the question whether a conveyance by a tax-collector, on the 8th January, 1872, in the precise form given by § 1700 of the Code, was properly rejected as evidence in ejectment, because of the want of a seal, scroll or any impression intended as a seal.

We answer that question in the negative. When the legislature has prescribed a form, it cannot be error to adopt it. “ In giving a form we must suppose every thing included which was intended to be required.” “ It was given expressly to prevent errors; it cannot therefore be error to follow it.” McIntyre v. White, 5 How. (Miss.) 298, cited and approved in Amos v. Allnutt, 2 S. & M. 215, and in Proskey v. West, 8 S. & M. 711. This rule must apply to every subject the legislature has the right to regulate.

Sect. 1698 of the Code, which prescribes the duty of the tax-collector, says, “ He shall execute conveyances to individuals purchasing lands at such sales, and he shall . . . file with the said clerk separate lists of the lands sold to the State, . . . and said list of lands sold to the State shall be in lieu of conveyances, and shall vest title in the State to all land embraced in said lists.” Prior to the Code of 1871 deeds were required to be executed by tax-collectors to individuals and the State. The Code of 1871 manifests a purpose to dispense with deeds, and to substitute a conveyance for individuals and a list for the State, as means of vesting title ; and as “ public revenue ” is a special subject, the particular provisions applicable to it are independent of the general subject of “ an act in relation to land” (chapter 62 of the Code, p. 499), except in so far as any of the provisions of the latter are referred to and adopted by the former. The argument drawn from the form of acknowledgment as prescribed, which employs the words “ signed, sealed and delivered,” fails to impress us as it does counsel, because this is a comprehensive formula made to cover all cases, including sealed and unsealed instruments, and it is certain that the statute has provided for recording a “ written contract” in relation to land “in the same manner as deeds for land.” § 2307, Code.

The acknowledgment of having “signed, sealed and delivered ” is exactly applicable to deeds. It is more than sufficient for a written contract or conveyance, without seal, but is the only form prescribed, and is good for instruments without seal, on the maxim omne major minus oontinet, and utile per inutile non vitiatur.

The fact that the term “ deed ” is used in §§ 1703 and 2309, in reference to the conveyance of land sold at tax sale, shows carelessness in the use of language, but; cannot operate to change the express provisions of § 1698, above mentioned, and of § 1700, which prescribes the form of “ conveyances made by a tax-collector,” and declares the effect of such conveyances, when made as directed.

The history of the Code as to seals alluded to by counsel supports our view. The fact that the Code, as proposed, dispensed with seals, except as to courts and corporations, and that the legislature rejected this feature, and was careful to retain seals generally, but with this in view not only omitted to require deeds or seals for conveyances by tax-collectors to individuals or the State, indicates conclusively, as we think, a studied, distinction between these conveyances and others. Rxpressio unius, exclusio alterius.

Another question urged by counsel as arising on the face of the conveyance of the tax-coliector offered as evidence is as to the description of two subdivisions of the land sold and conveyed. The argument is that the deed shows a sale of these two subdivisions, one of thirteen and one of fourteen acres, in connection with a larger tract, and that the sale was void as to the two subdivisions, and being void as to part, was void as to all. The description is, “ 14 A’s off N. E. cor. E. |-, S. E. \, sec. 20,” &c., and “ 13 A’s off N. end, W. S. W. lying N. of road, sec. 21,” &e. It is well settled, and not denied by counsel, that well-known abbreviations may be used in conveyances, and are sufficient; but the objection assumed to exist and to be fatal in this conveyance is, that “ 14 acres off of the north-east corner of an eighth ” of a section described, and “ 13 acres off of the north end of an eighth,” do not describe the land with sufficient certainty. We consider the description certain enough. It is easy to lay thirteen acres off of the end of an eighth of a section, and fourteen acres off of the northeast corner of an eighth. In the former, the whole boundary line north or south, as the designation may be the one or the other end, is to be considered the base line of the tract, and the quantity laid out by survey across the eighth. In the latter the given “ corner is a base point from which two sides of the land conveyed shall extend an equal distance, so as to include, by parallel lines, the quantity conveyed.” From this point the section lines extend south and west, so as to fix the boundary north and east; the southern and western boundaries only are to be established by construction, and the rule referred to gives them with sufficient certainty. Walsh v. Ringer, 2 Ohio, 327.

If the deed was void on its face for ambiguity, this being an incurable defect, the failure to assign this as a specific objection to it, when offered, would not preclude the consideration of the objection here, but we do not see any valid objection to the deed on this ground. >

The judgment is reversed, verdict set aside, and cause remanded.