24 So. 2d 343 | Miss. | 1946
Lead Opinion
On June 1, 1931, the Tax Collector of Marion County sold to the State of Mississippi, for taxes thereon in default for 1930, certain lands in said county described on the assessment rolls as "E 1/2 SW 1/4 and NW 1/4 SW 1/4, less 6A, Section 2, Township 2, Range 18." The lands were assessed to one Alex Jefferson, now deceased, intestate, and were not redeemed from the sale.
The state issued a forfeited tax land patent to W.E. Walker on October 3, 1939, and on June 5, 1943, Walker executed to the California Company an oil, gas and mineral lease. The case before us is a suit filed by Walker and the California Company, as complainants, in the Chancery Court of Marion County seeking the confirmation of the tax title to the above described one hundred and fourteen acres of land. The defendants were the *718 State of Mississippi, the heirs-at-law of said Alex Jefferson, deceased, and "all other persons having or claiming any legal or equitable interest in the lands in suit." The suit was brought under Chapter 309, Laws of 1940, Sections 1315 to 1322, inclusive, and Section 1314, all of the Code of 1942.
The state filed its formal answer, but the Jefferson heirs contested the suit, and filed an extensive answer in defense, which may be epitomized as a claim that the title of complainants is void. It is contended to be void because of an asserted patent ambiguity in the description of the land on the assessment roll and on the tax collector's list of lands sold to the state; because the tax collector failed to designate by accurate description the particular land he offered for sale, and struck off to the state; and since the title was void, complainants did not acquire title to any of the lands in suit under the three-year actual occupation statute, Section 716, Code 1942; and, in fact did not so occupy the land, and because Walker obtained his title by actual fraud on the state and defendants.
The case was heard by the chancery court on the pleadings and proof and a decree was rendered, holding therein that Walker went into possession of the lands described as the "East half (E 1/2) of the Southwest Quarter (SW 1/4) of Section 2, Township 2 North, Range 18 West of St. Stephens Meridian, subject to an oil, gas and mineral lease thereon, and held by the complainant, the California Company," after obtaining a patent thereto on October 30, 1939, and had "visible, distinct, actual, notorious, continuous, and exclusive possession of said land for more than three years prior to the date of the filing of the suit." However, the final decree also adjudicated that the Northwest Quarter (NW 1/4) of Southwest Quarter (SW 1/4) less six acres is indefinite as to description, and the tax sale thereof to the state was void because of such uncertainty, and consequently the state's patent to Walker and his oil, gas and mineral lease *719 thereon to the California Company, were void as to said portion of the lands in suit. The decree specifically adjudged that Walker met all requirements of the law in his application for the patent, which was lawfully issued for a fair consideration, and no fraud was perpetrated. Title to the East Half of the Southwest Quarter was confirmed in complainants, but was cancelled as to the Northwest Quarter of the Southwest Quarter, less six acres.
The Jefferson heirs, defendants below, appealed from that part of the decree confirming title in complainants to the East Half of Southwest Quarter; and Walker and the California Company, complainants below, cross-appealed from that portion of said decree cancelling their title to the Northwest Quarter of the Southwest Quarter, less six acres.
The appellants, the Jefferson heirs, cite the cases of Bowers v. Andrews,
The record of the case at bar presents differences between it and Carr v. Barton. Here, every assessment in Section 2 was offered in evidence, and the assessment roll showed that the entire East Half of the Southwest Quarter of said section was assessed to Alex Jefferson, and no part of it assessed to anyone else. It also showed that the Northwest Quarter of the Southwest Quarter, less six acres, was assessed to him, and the other six acres were assessed to True Light School, and no part of said subdivision was assessed to anyone else. In support of this assessment to the True Light School District a chain of record title showed a deed from Henry Jefferson, father of Alex Jefferson, conveyed to the latter the East Half of SW 1/4 and the Northwest Quarter of Southwest Quarter of Section Two, Township Two, North, Range 18 West, "except a strip of land 66 yards wide to contain six acres of equal width cut off the North side of the NW 1/4 of SW 1/4, Section Two, Township Two, North, Range 18, West." Henry Jefferson conveyed, by identical description, to Olive Jefferson, a "strip of land sixty-six yards wide to contain six acres of equal width cut off of the North side of the NW 1/4 of SW 1/4 of Section 2 North, Township 18 West." She conveyed this six acres, by the same description, to Thornhill and Wilkes, who conveyed *721 it to the Trustees of the True Light School, to whom it was assessed when the land of Alex Jefferson's estate were sold to the state for delinquent taxes in 1931. It will thus be seen that the tax conveyance to the state contained a clue, which, traced through the assessment roles and the deeds of conveyances, ultimately led to a definite description of the excepted six acres. No such proof was made in the Carr v. Barton case.
Appellants objected to the introduction of the assessment roll and the deeds into the evidence, relying upon Bowers v. Andrews and Smith v. Brothers, supra, contending the ambiguity was patent and could not be eliminated by extrinsic evidence, and that no reference is made to any of these deeds on the assessment roll, and, hence, by the authority of Carr v. Barton, nothing appeared in the assessment to furnish a clue by which to identify the land. The statutes in aid of descriptions on the assessment roll at the time the land in suit was assessed and sold to the state on June 1, 1931, for 1930 taxes, were Sections 3149 and 3151, Code 1930, now sections 9773 and 9775, Code 1942. By Section 3151, Code 1930, Section 9775, Code 1942, it is provided 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."
We held in Reed v. Heard,
The decision in the case of Reed v. Heard also disposed of Bowers v. Andrews, supra, by stating that it "is not the law of this state as to what shall constitute a sufficient description of land in an assessment, and has not been the law of this state since the adoption of section 491, Code 1880, which became section 3776, Code 1892, and section 4285, Code 1906. The above sections [of the Code] were adopted for the very purpose of abolishing the rule laid down in Bowers v. Andrews." Section 4285, Code 1906, became Section 3151, Code 1930, and is now Section 9775, Code 1942.
We held in Standard Drug Company v. Pierce,
The appellants also argue that the tax sale was void because the tax collector failed to designate by accurate description the particular land to be offered for sale, and struck off to the state. They say it was impossible to *723 offer any particularly designated forty acre subdivision in view of the claimed patent ambiguity. We have disposed of the patent ambiguity above, and appellants offered no proof on the point. We do not think there is any merit in the contention.
Next it is argued by appellants that appellees did not acquire title to any of the land in suit under the three-year actual occupation statute, Section 716, Code 1942, to the effect that three years actual occupation under a tax title, after two years from the date of the tax sale of the land, bars suit. It is contended that the proof of Walker's occupation of the land was wholly insufficient to meet the requirements of the statute; and appellants cite decisions of this Court holding that statutes of limitation, except the ten year statute, do not run in favor of the holder of a tax deed void on its face. We have above held this tax deed was not void on its face. The proof as to occupation was sharply conflicting and the chancellor specifically held in favor of appellees on this conflicting testimony, and we will not disturb his holding thereon, since we cannot say it is manifestly wrong, or against the overwhelming weight of the testimony.
The fourth and last alleged error argued by appellants is that appellees were not entitled to a decree quieting and confirming their tax title to the extent granted them, or at all; (1) because the tax sale was void; and (2) because Walker obtained his patent by actual fraud on the state and them.
This suit as already stated, was filed under a comparatively recent statute, Chapter 309, Laws of 1940, becoming Section 1315 to 1322, Code of 1942. Section 3 of the Act, now Section 1317 of the 1942 Code, provides that "Upon the hearing of such cases it shall be the duty of the chancery court to enter a decree validating and perfecting the title of said land from the state of Mississippi, unless it shall appear to the court and the court shall find as a fact that the state has not acquired title to said land by virtue of said tax sale, or that the title to the said *724 land involved in the suit was divested out of state of Mississippi without payment of purchase price or by reason of actual fraud on the part of the patentee, or his representatives," etc. Appellants charge that the fraud consisted of deliberate misrepresentation by Walker of the value of the one hundred and fourteen acres involved, for which he paid $114, and the improvements thereon. The valuation of the land, of course, was determinable as of the date of the patent, 1939, and not as of the date of the trial.
On this phase of the controversy there was also sharply conflicting testimony. It is argued that the consideration was grossly inadequate, which cannot be allowed, citing Slay v. Lowery,
The case will, therefore, be affirmed on direct appeal. But since we consider the chancellor committed error by cancelling the title of cross appellants to Northwest Quarter of Southwest Quarter, Section 2, Township 2 North, Range 18 West, of Marion County, Mississippi, less 6 acres, we are constrained to reverse the case on cross-appeal, which we do. A decree will be entered here, accordingly, also confirming the title of W.E. Walker to said Northwest Quarter of Southwest Quarter, less six acres of above Section, Township and Range, subject to his oil, gas and mineral lease to the California Company.
Affirmed on direct appeal. Reversed on cross-appeal and decree here for cross-appellants.
Addendum
In view of the fact that the case of Brown v. Womack,
In the case of Reed v. Heard, supra [
The said case of Bowers v. Andrews had held that the deed of a tax collector who sells in invitum by virtue of the power conferred by law, must in itself be sufficient to *727
convey the thing sold. But if that were still true under the statutes involved, parol testimony would not be needed, nor would there be any need to follow a clue to ascertain what land was intended to be assessed and sold. Moreover, the Court, in the case of Reed v. Heard, supra, expressly overruled the case of Smith v. Brothers,
The distinction between a patent ambiguity in an assessment, which can be aided by the foregoing statutes, and an utterly void assessment, which cannot be aided by parol testimony, should be kept in mind when applying them, since a patent ambiguity may appear in either of such assessments. A description on an assessment roll, or in a conveyance for taxes, may contain an ambiguity, whether patent or latent, which can be made certain by parol testimony; whereas, an utterly void assessment, such as "part of" a given tract or division, without the number of acres being given or any other clue on that or any other line of the assessment roll of the land in the tract or division under consideration, cannot be aided by parol.
It has been uniformly held that an assessment which reads, "a part of," or "six acres in" a known tract or division is an utterly void description, except in a case where the quantity is given, and, as in Reed v. Heard and Albritton v. Fairley, the other lines of the assessment roll of the land in the same tract or division, or the particular assessment, furnishes a clue which, when aided by parol testimony, will make the description certain. The cases so holding are those of Meyerkort v. Warrington (Miss.), 19 So.2d 433, 434; Id.,
The sales of land to the state described as in the foregoing paragraph have, without exception, been stricken from the records in the Land Office as indefinite, uncertain and void, on the approval of the Attorney General, in construing the decisions of this Court in that behalf. In other words, the policy of striking from the records in the office of the State Land Commissioner the tax sales because of uncertainty and indefiniteness in the description has vacillated only as to those sales where the land is described by a known tract or division, "less" a given number of acres therein.
In the case of McAllister v. Honea,
While the Court in that case was dealing with a description in a conveyance between individuals, as aforesaid, the point decided was that the ambiguity of the description of land excepted from a conveyance did not *729 make the conveyance void for uncertainty, even though the Court observed that the conveyance should be construed against the grantor in a deed between individuals. The inquiry here is whether or not, in view of the many liberal provisions of our taxing statutes in favor of the property owner in regard to the assessment and sale of his land for taxes, it would be a denial of due process to apply the provisions of Sec. 3151, Code 1930, Sec. 9775, Code 1942, and to hold that the assessment against Alex Jefferson of the NW 1/4 of SW 1/4 less 6 acres, of given section, township and range has the effect of assessing him with all the land that he owned in that 40, placing upon the purchaser at the tax sale the burden of showing, and giving him the right to show, by parol testimony, what land was intended to be assessed and sold; that is to say, whether or not such an assessment is utterly void, in the light of the decisions herein discussed.
The pertinent provision of Sec. 3149, Code 1930, Sec. 9773, Code 1942, is that land may be assessed, "by any description which will furnish a sure guide for the ascertainment by parol evidence of the particular land intended." And the provisions of Sec. 3151, Code 1930, Sec. 9775, Code 1942, to be considered in discussing our former decisions, are those which read as follows: "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; and 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." And any apparent confusion that exists in the cases is due either to the fact that such of these two provisions as were applicable were not taken into account in a particular case, or the litigant who was *730 relying upon the tax sale had depended at the trial upon the sufficiency of the description on its face, without resorting to the introduction of such parol testimony as may have been available to him under the statute in question.
In the case of Reed v. Heard, supra, the description involved in the tax sale was one where the assessment was to "Unknown" of "40 acres in the W. 1/2 of N.W. 1/4, section 24, township 25, range 2 W.," and it was held permissible to introduce a different line on the assessment roll showing that W.D. Buford was assessed with, "40 acres in the W 1/2 of N.W. 1/4 Sec. 24, T. 25, 2 W., west of the bayou," and to show by oral testimony that he owned and paid taxes on the same, and that there was only 40 acreslying west of the bayou — a fact that did not appear on the assessment roll; that this assessment to Buford and the parol testimony was admissible to apply the description, "40 acres in the W 1/2 of NW 1/4," assessed to "Unknown," since the said assessment to Buford by the aid of the parol testimony in regard thereto, made it certain that the remaining 40 acres assessed to "Unknown" was the land assessed and sold for taxes. The Court therefore held, as expressly stated in its opinion that the case fell within the last provision contained in those clauses of Sec. 3151, Code 1930, Sec. 9775, Code 1942, hereinbefore quoted. And it is obvious that the description on the line of the assessment to "Unknown," as being "40 acres in W 1/2 of NW 1/4," which was conveyed to Reed by the tax collector, contained a patent ambiguity.
In the case of Brown v. Womack, supra, the appellee, Charlotte Womack, was the owner of the N 1/2 of Sec. 9, T. 12, R. 7 W., in Sharkey County. The assessment on the roll appeared, "To whom assessed, Charlotte Womack; when sold, August 3rd, 1931; description of land, in Sec. 9, Tp. 12, Range 7; number of acres, 315." [
It is conceded, however, by counsel in the case at bar that the description on the assessment roll to Charlotte Womack would have meant the same thing if it had read, 315 acres in Sec. 9, T. 12, R. 7 W.; that a description thus appearing on the roll would have been void, and that on such theory the decision in that case could be upheld as correct. The concession as to the correctness of that decision, however, seems to overlook the failure of the Court to take into consideration, if the point had been emphasized in that case, the provision of the statute here under consideration, which reads, "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; . . ."
The court in that case had before it "a known tract or division of land." That is to say, Sec. 9, T. 12, R. 7 W., just as the trial court had before it in the case at bar a known tract or division described as NW 1/4 of SW 1/4 of Sec. 2, T. 2, R. 18 W; but in the instant case neither the description "NW 1/4 SW 1/4 less 6 A." in the said section, township and range, assessed to Alex Jefferson, nor the other line of the assessment to the True Light School, as "6 A. NW 1/4 of SW 1/4", was sufficient to identify the location of the part assessed to the respective owners.
Hence, it will be necessary to determine, in the present case, the question of whether or not the last clause of the *732 statute hereinbefore quoted can be applied to uphold the validity of the assessment to Alex Jefferson of the "NW 1/4 of SW 1/4 less 6 A.," and which concluding clause, as aforesaid, reads as follows; "And parol testimony shall always be admissible to apply the 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." And it may be conceded that there is not "enough in the description on the roll or conveyance to be applied to a particular tract of land," but the question is whether there is enough "by the aid of such testimony." The decision in the case of Brown v. Womack, supra, seemed to turn upon the fact (1) that there was a patent ambiguity in the assessment to Charlotte Womack, and it ignored that "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," and (2) upon the fact that there was no clue in the particular assessment to enable the court to apply the description to a particular tract of land by the aid of parol evidence. And the decision seems to have also overlooked the fact that it had been held in Reed v. Heard, supra, that, "such testimony may always be resorted to, whether the ambiguity is patent or latent, where such testimony will show what land was assessed and sold," provided 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.
In the case of Carr v. Barton,
Likewise, in the case of Hatchett v. Thompson,
It will also be observed that in the case of Hatchett v. Thompson, supra, the Court dealt with the description as if it had read on the assessment roll, "70 acres in the W 1/2 of SW 1/4," whereas the assessment was not introduced at all, and the description in the tax deed relied upon read, W 1/2 SW 1/4 less 10 A. Sec. 10. T. 15, R. 4 — 70 A." and was therefore similar to the assessment in the instant case reading, "E 1/2 SW 1/4 NW 1/4 SW 1/4 less 6 A. Sec. 2, Township 2, Range 18, 114 A."
The Court did not hold, however, that parol testimony was inadmissible to determine the location of the excepted 10 acres and no reference was made in the opinion to Sec. 3151, Code 1930, Sec. 9775, Code 1942, but said in effect that if the description had read W 1/2 of SW 1/4 less 10 acres, as it in fact did read, it would have been an assessment of the whole 80 acres, with 10 acres excepted therefrom, and held, in effect, that the description, if it had so read, would not have been void. *735
The former opinion in the case at bar points out what parol testmony was introduced, and which showed what land was assessed and sold; and we held in effect that there was enough in the description on the roll, considering the words "less 6 acres" as the clue, to be applied in determining what particular tract of land was intended to be assessed to Alex Jefferson, by the aid of such testimony; and we held in effect that the description was not utterly void, and this was true in view of what was said in McAllister v. Honea, supra; Beasley v. Beasley,
In the case of Price v. Ferguson,
In the case of Miller v. Fulliwiley,
Moreover, it was said in the case of Illinois C.R. Co. v. Le Blanc,
Finally, let it be reaffirmed that the case of Albritton v. Fairley,
In the instant case, although not permitted, under the rule announced in Carr v. Barton and Brown v. Womack, supra, and other cases therein cited, to look to the name of True Light School in the column, "To whom assessed," in regard to the "6 A. NW 1/4 SW 1/4", which was assessed to it, Walker was entitled to show, and did show, by the introduction of recorded deeds, that the True Light School owned "a strip of land 66 yards wide to contain 6 acres of equal width cut off the north side of the NW 1/4 of SW 1/4, Sec. 2, T. 2 R. 18 W", and that the deed records disclosed that Alex Jefferson owned, at the time of the assessment and sale of the land, all of the 40-acre tract other than that described in the deed to the True Light School; and that the assessment roll further disclosed that no part of the NW 1/4 of the SW 1/4 of the said section, township and range was assessed to any one else. This proof had the effect of establishing to a moral certainty what land was assessed and sold as belonging to Alex Jefferson; that he necessarily knew exactly what 6 acres of the 40 had been conveyed away, and what land therein he was intended to be assessed with, as affording to him due process of law after due notice of the assessment against him; that any one interested in bidding on said land at the tax sale was furnished by the assessment roll on the 40 acres such information as, when followed up, would lead to the ascertainment of the particular tract of land to be offered for sale as the property of Alex Jefferson; that is to say, there was enough in the description on the roll, "NW 1/4 of SW 1/4 less 6 A.", plus the additional assessment of "6 A. in NW 1/4 of SW 1/4" — even though one must close his eyes to the fact that the latter description followed the name of True Light School under the caption, "To whom assessed" — to be applied to a particular tract of land in the 40-acre tract by the aid of parol testimony, which is all that the law requires. *739
The length of this opinion can be justified, if at all, on the ground that several hundred pages of briefs have been submitted by counsel of record and counsel amici curiae on the suggestion of error herein, citing practically all of the previous decisions of this Court as to the sufficiency or insufficiency of descriptions of land involved in tax sales, and on the ground of the importance of the question under consideration.
The appellee and cross-appellant, Walker, was entitled to a decree confirming his title to the NW 1/4 of the SW 1/4 less the six acres particularly described in the deed to the True Light School.
The suggestion of error must, therefore, be overruled.
Suggestion of error overruled.