DocketNumber: 35955; 35955
Citation Numbers: 24 So. 2d 343, 199 Miss. 705, 1946 Miss. LEXIS 241
Judges: McGehee, Smith
Filed Date: 1/14/1946
Status: Precedential
Modified Date: 10/19/2024
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 *Page 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 *Page 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 *Page 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 *Page 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. *Page 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. *Page 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.