McQueen v. Bush

76 Miss. 283 | Miss. | 1898

Woods, C. J.,

delivered the opinion of the court.

The bill of complaint, as finally amended, purports, in its body and in its prayer, to be one for the confirmation of a tax title held by the appellee to a lot of land assessed and sold, first to the state by the proper tax collector, and subsequently by the state to appellee, as 90 by 225 feet, on the west side of Warrenton road, assessed to John Parkhurst, in section 34, township 16 north, range 3 east, in Warren county, Mississippi. But the bill avers and charges that there is no such lot in section 34, but that said lot is in section 29, in said township and range, and that said lot'was erroneously located by the assessor in section 34, when, in truth, it is located in section 29. The bill of complaint seeks to meet and obviate this apparently insurmountable difficulty, by alleging that the location of said lot, in the assessment, sale, and conveyances and deeds in section 34 may be treated as mere surplusage. But the attempt to meet the difficulty must fail. The reference to the section 34 is as much and as essentially a part of the description of the lot as any other part of the description in the assessment, sale and conveyances. The bill is, in substance, and, if maintained, its effect would be, to correct and reform a tax title, and this correction and reformation of a tax title cannot be made, as the learned counsel for appellee freely admits.

But, moreover, if the reference in the assessment, sale and conveyances to section 34, township 16, range 3, were regarded as mere surplusage, the case of appellee would be in nowise helped. We would then have this description of the lot: 90 by 225 feet on west side of Warrenton road, assessed to John Parkhurst. Now, it has been held in Bowers v. Andrews et al., 52 Miss., that the name of the person to whom the land was assessed is not descriptive of the land, but is descriptive of the reason for the sale of the land. Disregarding, then, the name of the person to whom the lot in the present case was assessed, where is the clue in the assessment ‘£ which, when followed by parol evidence, would conduct certainly to the land intended ? It is admissible only to apply the description on the roll, which must give the start and suggest the course, which, being followed, will point out the land intended to be assessed. ’ ’ Dodds v. Marks, 63 Miss. The description on the roll and in the deed from the state to appellee is to “the 90x225 feet on the west side of the Warrenton road.” There is no clue here which, if followed, would conduct anywhere with certainty.

The counsel for appellee frankly say in their brief that the bill of complaint furnishes the clue, gives the start and suggests the course. That is perfectly true. Taking the description contained in the bill, any one could readily find the lot. But it is not the clue to be found in a pleading which is to give the start and suggest the course which, being followed, will point out the lot of land. ■ The statutes invoked by appellee’s counsel, § 3775 and § 3776, require the clue to be found in the assessment roll, and not in a complainant’s bill.

But, we repeat, the purpose sought to be effected is a reformation of a tax deed which follows, in its description of the land, the assessment roll, and this cannot be done.

The averment of the bill that the assessor intended to assess and the collector intended to sell a lot in section 29 goes for naught, for in Sims v. Warren, 68 Miss. 447, it was said: “Nor do we think it would have been competent to show by parol the intention of the assessor undisclosed by wffiat he did in fact do and record upon the memorial provided by law as the exponent of his action. There cannot be an assessment of lands, within the constitutional requirements, which rests only in the memory and purpose of the officer. There must be official action evidenced by the roll he is required to make. ’ ’

Reversed and remanded.