Mixon v. Clevenger

Cooper, C. J.,

delivered the opinion of the court.

The appellee exhibited his bill in the chancery court of Perry county to cancel, as a cloud upon his title, a hostile tax title, claimed by the appellants, and, on final hearing, the court decreed in his favor. The lands are a part of the east half of section 32, township 5 north, range 13 west. They were assessed for the year 1890, under the following description: “East half west of Bowie, section 32, township 5 north, range 13 west,” and were so described in the conveyance from the tax collector to appellants.

The assessment roll, on which the lands were sold, was properly returned by the assessor, and went into the custody of the board of supervisors. At the August meeting of the board, an order was made as follows: “ Ordered, that the real assessment of 1889 be now taken up for examination and correction.” At the same meeting, and subsequent to the above order, the following order was made: “ Ordered, that the real assessment for 1889 of this county be received as corrected.”

T. J. Mixon, one of the appellants, was deputy sheriff to McCallum, the sheriff and tax collector, and on the day of the tax sale acted as clerk to the collector, noting down the lands as sold by him with the names of the purchasers. The land of the appellee was bid in at the tax sale by the appellant, McCoy. Afterwards, and before the deed was made by the tax collector, an agreement was entered into between Mixon and McCoy, by which Mixon was to pay one-half of the amount bid, and was to have one-half interest in the land, and the collector thereupon, being requested by the parties, made the conveyance to Mixon and McCoy.

The grounds upon which the tax deed is assailed are (1) because of ambiguity in the description of the land on the assessment roll and in the deed; (2) that the assessment roll was never approved by the board of supervisors; (3) that the deputy of the tax collector was a purchaser at the tax sale; and (4) that the whole tract was sold without having first been exposed to sale in the smallest legal subdivision, as required by statute.

By § 491 of the code of 1880, it was, among other things, 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.” Conceding, for the purposes of this decision, without deciding, that there is an ambiguity in the description of the land, we think it clear that it has been fully explained and the land definitely and certainly identified. No parol proof was taken by the defendants, but none was needed, for the facts alleged by the complainant, in his bill in reference to the land, removed all doubt, if any existed. The complainant alleged that he was ‘£ the legal and equitable owner of the following lands, situated in the second judicial district of Perry county and State of Mississippi, to wit: That part of the east half of section 32, situated south and west of a certain stream known as Bowie river, in township 5 north, and range 13 west, of said county and state.” Having deraigned his title to the land, complainant further averred £ £ that, for the fiscal year 1890, the said lands in question was, by H. M. McCallum, the tax collector and sheriff of the said Perry county, pretended to be sold for the taxes due thereon for said year, and deeded to T. J. Mixon and L. S. McCoy, said defendants, in March, 1891, for taxes as aforesaid, for the insignificant sum of 9 and dollars, as more fully appears from a certified copy of said pretended conveyance filed herewith, marked £ Exhibit G, ’ and prayed to be made and considered a part of this bill of complaint. ’ ’

If there was any ambiguity in the description of the land, it sprang from the single fact of a failure to designate “Bowie” as a river. If the description had been of so much of the east half of the section as is west of Bowie river, it .would have been a perfect one. We judicially know that there is a Bowie river in that section of the state in which the lands lie. The complainant avers, in effect, that this river intersects the east half of section 32, that his lands lie west of the river, that they were delinquent for the taxes of the year 1890, that they were sold by the tax collector for such taxes, bought by the appellants, and that the very deed sought to be canceled was executed by the collector for the purpose of conveying these lands to them. It is true the complainant says the lands were pretended to be sold, but this word pretended is but the usual form of characterizing an act the validity of which the complainant challenges by his bill. It does not suggest that the lands lie claims were not the precise lands with reference to which action was had. On the contrary, the complainant insists that his lands were those as to which the proceedings were directed.

If there was ambiguity in the description of the land, and the complainant, as he might have done, had averred only that the defendants asserted some claim to the land which ought to be canceled, as a cloud upon his title, it would then have devolved upon the defendants to have offered parol proof ‘ ‘ to apply the description of the land on the assessment roll and in the conveyance” to the land claimed by the complainant. If such had been the state of the pleadings and the defendants in their answer had set up the facts which complainant has stated in his bill, and proved them as alleged, no doubt could exist as to what lands were assessed and sold. It is axiomatic that a defendant may treat as true all facts averred by the complainant. He need not restate the facts in the answer, for so to do would make no issue between himself and complainant, and, in the nature of things, no evidence can be required to establish a fact charged by one of the parties and admitted by the other. Nothing would be added to the force of the argument that such evidence should be required, if it were conceded that the complainant was under the necessity of making the averments found in the bill in reference to the assessment and sale of the lands. It would yet remain true that the averments identified the land, applied the description in the assessment and tax deed to it, and left no issuable fact as to which evidence could be adduced.

2. The entry of the order by the board of supervisors that the real assessment roll for the year 1889 be received as corrected, sufficiently shows an approval of the roll by the board. The word “received,” as here used, cannot have its primary significance, for the former order of the board shows that the roll had already passed into its custody, that it had accepted it from the assessor and taken it up for examination, as required by law. It had corrected the roll, as the last order shows. There was no one from whom it could then, receive the roll, for it was already in the custody of the board, and, necessarily, the meaning of the word, under these circumstances, was that the board finally had accepted with approval, or approved, the completed, corrected roll. Mills v. Scott, 62 Miss., 525; Grayson v. Richardson, 65 Miss., 222.

3. The evidence does not support the proposition that the deputy of the tax collector was a purchaser at the tax sale. We do not mean to decide or imply that if such were the fact, the sale would thereby be invalidated. The facts are that the land had been exposed to sale and bid off by McCoy, and nothing remained to be done except the payment of the bid and the execution of the deed, when Mixon acquired an interest in the land. This interest he acquired not by virtue of the tax sale, but by private agreement with McCoy, and the tax collector’s conveyance served but to execute that agreement. If McCoy had received the deed from the collector, and had instantly conveyed an undivided one-half interest in the land to Mixon, no one could doubt the right of the parties. While it is true that one may not do indirectly that which the law forbids him to do directly, there is nothing to prevent a man from doing directly that which the law permits him to do indirectly.

4. Section 526 of the code of 1880 provides: “The conveyance made by the tax collector to individual purchasers of land, and the list of lands sold to the state, as aforesaid, shall be primxa facie evidence that the assessment and sale of the land were legal and valid. ” No evidence was introduced to show that the lands were not exposed to sale in the manner prescribed by statute, except the testimony of the tax collector by whom the sale was made.

The chancellor sustained the exception of the defendants to the answers of this witness to the fourth, fifth and sixth interrogatories. The exceptions do not appear in the record. We suppose, however, they were grounded upon the incompetency of the officer as a witness to testify so as to impeach his own official conduct, but if the testimony had been admitted, it was wholly insufficient to overthrow the jjrima facie case made by the deed. The officer does not state how he sold the land, or that it was sold in violation of law. He simply says that, in his opinion, he does not see how he could have sold the land in the smallest legal subdivision unless he had had a map of it, and does not remember that he had a map.

Decree reversed and Mil dismissed.