Webb v. Mobile & Ohio Railroad
62 So. 168
Miss.
1913
Check Treatment
Cook, J.,

delivered the opinion of the court.

The Mobile & Ohio Eailroad Company exhibited its hill of complaint against J. H. Webb, seeking thereby to cancel, as a cloud upon its title, a certain tax deed for eighty acres of land situated in Tishomingo county: First, because the taxes assessed against the land were paid before the sale; second, because the description of the land as assessed and conveyed is vague, indefinite, and uncertain; third, because the deed, upon its face discloses that the sale of the land for the alleged unpaid taxes was made in the year 1906 for the taxes of 1906.

The first ground of complaint, we think, was not supported by the evidence. The tax receipts produced to show that the taxes were paid do not, in our opinion, show that any taxes were paid upon 'the land in controversy.

The description of the land by the assessment, and as written in the deed, is as follows: ‘ ‘ South part of section 29, township 3, range 11, eighty acres.” This description simply means eighty acres of land off the southern end of the section of land described. The south-, ern boundary of the land so described is the south line of the section, and the northern boundary is a line of sufficient distance north of the southern boundary to embrace eighty acres of land. Swan v. Mortgage Co., 75 Miss. 907, 23 South. 627.

The deed, upon its face, recites that the land was sold in March, 1906, for the delinquent taxes of 1906. It would thus appear, from the deed, that the sale was void, because the law did not authorize a sale of this land for *182the nonpayment of the taxes dne for the year 1906, until the first Monday in March, 1907. This was recognized by appellant, and he sought to introduce parol evidence to-show that the date of the deed was a clerical error, and to show as a matter of fact that the sale was made in 1907, and that the deed was signed in March, 1907. Upon the objection of appellee, complainant below, the learned chancellor refused to permit appellant to make this proof, upon the ground that the terms of a written instrument could not be contradicted or varied by parol evidence.

It is stated in appellee’s brief the chancellor based his ruling upon the authority of Bower v. Chess-Wymond Co., 83 Miss. 218, 35 South. 444. It will be noted that the point before the court in Bower v. Chess-Wymond Co., supra, was as to whether or not parol evidence was competent to show that the land was sold for the taxes of 1896, when the tax-deed recited that the land was sold for the unpaid taxes of 1897, while the issue presented by this appeal is whether it is competent to prove by parol evidence that the recital in the deed that the land was sold in March, 1906, was a clerical error, and that in fact the sale was made at the proper time, viz., the first Monday of March, 1907.

In Brigins v. Chandler, 60 Miss. 862, the precise point involved in the present case was disposed of in the following language, viz.: “The sale for taxes was made on the first Monday of January, 1872, which was the time fixed by law for sale of land delinquent for nonpayment of taxes, and the dating of the conveyance on the day it was made, which was a subsequent day, did not affect its validity, nor did the recital in the conveyance that the-sale was made on the day of its execution preclude the showing of the fact that the sale was made at the proper time.” The established reputation of the learned jurist who wrote the opinion of the court in that case for accuracy of thought and preciseness of expression will not *183justify the contention that he did not advisedly use the language employed by him, and that he meant anything less than the words import.

In Bower v. Chess-Wymond Co., 83 Miss. 218, 35 South. 444, the court says that Brigins v. Chandler, supra, “is overruled manifestly” by French v. McAndrew, 61 Miss. 193, if in Brigins v. Chandler the court held it is competent to show that the sale occurred on a different date from the day stated. This is exactly what was decided in Brigins v. Chandler, and after an examination of the original record in French v. McAndrew it is perfectly manifest that Brigins v. Chandler is not overruled thereby. The deed in controversy in French v. McAndrew was a deed purporting upon its face to convey land sold in 1876 for the taxes delinquent for the fiscal year 1874. There was no attempt to prove a clerical error by parol evidence, and there was no admission of the fact. So the court merely held that the deed was void upon its face— this and nothing more.

It is difficult to perceive how the admission that a clerical error can be shown, necessarily by parol evidence,' can be of any probative value/ unless the evidence admitted to be true was competent to prove the admitted fact. If the facts were pleaded, a demurrer admitting them to be true would be sustained, unless the pleaded facts could be proven upon issue joined. However, the court, in French v. McAndrew, held that, no clerical error having been shown, and there being no admission that there was a clerical error, that case was not the case decided in Brigins v. Chandler. Clearly there was no intention to overrule the latter case.

We neither criticise nor agree to the decision of the court in Bower v. Chess-Wymond Co., as the thing decided there is not the thing in controversy now, and this opinion will be confined to the issue made by the record now before us. Upon the authority of Brigins v. Chandler, supra, the decree of the chancery court in this case *184must be reversed. Brigins v. Chandler bas never been reversed, but bas stood for twenty years as tbe settled law, and until it was criticised in Bower v. Chess-Wymond Co., supra, and in that case tbe court expressly declined to overrule it.

Tbe stability and certainty of rules relating to muni-ments of title to real estate is of tbe first importance, and this court would be reluctant to overrule a case of sucb long standing merely because we might doubt tbe soundness of tbe principle therein announced.

Reversed and remanded.