162 So. 172 | Miss. | 1935
The appellant, Mrs. Kittie Carr, was plaintiff in the court below, and, on June 17, 1933, filed her bill in the chancery court of Attala county to confirm a tax title to property in said county described as follows: House and west half of lot seven, and ten feet of lot eight, and one and one-half feet west side of the east half of lot seven, section thirty-four, township fifteen, range eight; house and two-acre lot in section thirty-four, township fifteen, range eight; north one-half of the northwest one-fourth less one-third acre to Mrs. Carr and five acres, southwest one-fourth of the northwest one-fourth of section four, township fourteen, range eight.
The bill was filed against W.T. Barton and wife, Mrs. Delina Barton, the Bank of Ethel, and J.G. Smythe, trustee, and there was attached to the bill as an exhibit a deed from the chancery clerk attempting to convey to Mrs. Kittie Carr the above described lands. The tax sale occurred on May 4, 1931, for the taxes of 1930, and the deed was dated May 9, 1933.
The bill included also a notice or order of the board of supervisors reciting that on receiving the report of the tax collector it was found that it was impossible to sell all the lands delinquent at the time required by law, the first Monday in April, and the board fixed the first Monday in May, 1931, as the date of sale, and directed notice to be given thereof.
The bill was demurred to, the demurrer was sustained, *668 and the bill was amended. The defendants answered the amended bill embracing in their answer a demurrer.
The chancellor, after hearing the testimony, including the introduction of the various deeds and maps, held that the tax deed was void for a patent ambiguity as to all the lands embraced in the bill, except that described as the "north one-half of the northwest one-fourth less one-third acre to Mrs. Carr," and sustained the bill as to that land, from which decree the appellant, who was plaintiff, takes a direct appeal, and the appellees, defendants, take a cross-appeal from the decree as it adjudges title to the north one-half of the northwest one-fourth less one-third acre to Mrs. Carr.
The notice of the tax collector's sale appeared in the Sunday issue of the county paper which was issued on Wednesday and Sunday, there being but two issues each week. There does not seem to have been introduced any proof of publication by the publisher, or any other officer, but the chancery clerk kept notices appearing in said paper in his office, and these were offered in evidence. It was also shown by one owner of the paper that the paper was actually published and mailed on Saturday afternoon, but was dated Sunday.
Under section 3120, Code of 1930, when lands are assessed, by a legal assessment, a lien is created upon all property so assessed. By section 3122, Code of 1930, when taxes are legally assessed they become a personal debt against the owner. By section 3148, Code of 1930, lands not surveyed according to the plan of government surveys shall be assessed by the designations used on the government maps, or by other description or names by which they may be distinguished, and if parts of such lands shall be owned by different persons, such parts shall be referred to by quantity, and such short memorandum as may be convenient to show the locality. By section 3149 it is provided that a failure to observe the requirements of section 3148 shall not vitiate any assessment, *669 if the land be so described as to be identified, "and it shall be sufficient identification of land to describe it as the land of . . . (the person owning or claiming it), occupied by . . .; or that part of (section or other known division designating it) owned or claimed by . . .; or the lot on which . . . resides; or the lot occupied by . . .; or by the name by which it may be known; or by any description which will furnish a sure guide for the ascertainment by parol evidence of the particular land intended."
In order that a lien may be created by an assessment, there must be in the assessment such description or such reference to some particular place, or thing, or a fact by which a certain description may be determined. It is not sufficient to describe lands on an assessment roll in such manner as that different minds might reach different conclusions. There must be a certainty in description, or some reference in the assessment roll, or some indication, which will lead or point to a sufficient description. This is one of the elements of due process of law, and before a person can be deprived of property by assessment and sale, there must be some data in the assessment which will clearly lead to identification of the property. United States v. L. Cohen Grocery Co.,
In McQueen v. Bush,
In the case at bar, the only indication on the assessment roll that would show to whom the property belonged was the name "W.T. Barton" in the column on the assessment roll marked "Name of owner." This was held in the case of McQueen v. Bush, supra, not to sufficiently identify the property. It merely shows the name of the person to whom the property was attempted to be assessed, and is no part of the description of the property. It does not aid in the description in any sense.
It is manifest that the description, per se, as on the roll and in the bill, does not describe the property so as to identify it in a manner that would enable it to be located therefrom by a surveyor. Furthermore, it does not follow the direction of section 3149, Code of 1930. There is nothing in the assessment roll in the case at bar showing anything by which the land may be identified. It seems to have been the idea of the assessing authorities that if a person inquired and found out who occupied the land that would be sufficient, but such is not the law. The assessment roll must furnish the key or must itself describe it. When property is properly described, it may be assessed to an unknown person, or to any person though not the owner, and such will be a legal assessment. If the assessment in the case before us had described the land as the land of W.T. Barton, or as occupied by W.T. Barton, or claimed by W.T. Barton or a name by which the property was known in the community, then extrinsic evidence could have been *671 offered in aid of the roll under the statute admitting parol evidence.
We will notice some other decision of this court bearing upon this question.
In Crawford v. McLaurin,
In Illinois Cent. R. Co. v. Baldwin,
In Sims v. Warren,
In Cassidy v. Hartman,
In Smith et al. v. Brothers,
In Boone v. Wells,
In Lott v. Rouse,
In Illinois Cent. R. Co. v. Le Blanc,
In Moores v. Thomas et al.,
In Reed v. Heard,
In Standard Drug Co. v. Pierce,
In Levenworth v. Greenville, etc., Co.,
In Wheeler v. Lynch,
In Martin v. Smith,
In Patterson v. Morgan,
We have set forth and summarized these holdings for the purpose of showing that the rule has always been in this state that the assessments must contain sufficient descriptions themselves on their faces, or point to where such information may be obtained.
We think that all the cases adhere to the rules announced in McQueen v. Bush, supra, and that any apparent conflict in the decisions grows out of the principles there announced when applied to the particular assessments in the different cases.
A judge must first determine in deciding a lawsuit what the facts of the case are, and, second, what principles of law should be applied to these facts. There is no conflict in the principles, and, as set forth in the authorities quoted, due process of law requires a sufficient identification of the property assessed before a lien *676 thereon will be acquired, and before a personal debt will be established on the property against the owner and before a sale can be made of such property.
Applying the clear principles of law to the facts of the case at bar, we are of the opinion that the assessment was void. Therefore the decree of the court below will be affirmed on direct appeal, and on the cross-appeal it is reversed and the bill dismissed.
Affirmed on direct appeal and reversed on cross-appeal and bill dismissed.