Bower v. Chess & Wymand Co.

• Court: Mississippi Supreme Court
• Writing for the Court: WHITFIELD, C. J.
• Citation: Bower v. Chess & Wymand Co., 83 Miss. 218, 35 So. 444 (Miss. 1903)
• Decision Date: 14 December 1903
• Parties: ANN BOWER ET AL v. CHESS & WYMAND COMPANY ET AL

35 So. 444

83 Miss. 218

ANN BOWER ET AL v. CHESS & WYMAND COMPANY ET AL

Supreme Court of Mississippi

December 14, 1903

FROM the chancery court of Quitman county. HON. A. McC. KIMBROUGH Chancellor.

Mrs Bower and another, appellants, were complainants in the court below, the Chess etc., Company, and others, appellees, were defendants there.

The suit was a proceeding to confirm a tax title.

The bill alleged that the lands were sold by the tax collector of Quitman county on the first Monday in March, 1897, for the taxes due for the year 1896, and complainants became the purchasers at that sale; that the sale was duly and legally made, after proper notice had been given. The bill further alleged that in making the deed to complainants the tax collector made a clerical error, by writing the figures "1897," instead of "1896," as the year for which the taxes were delinquent, but in executing said deed it was the purpose and intention of the tax collector to write the figures "1896," and thereby to recite that the land was sold for the taxes assessed thereon for the year 1896, and that said land was in truth and in fact duly and legally sold to complainants for the taxes delinquent for the year 1896. A copy of the deed was filed as an exhibit to the bill. The deed recites that the land was sold in 1897 for the taxes of 1897. The appellees demurred to the bill on the ground, inter alia, that the tax collector's deed was void on its face. The demurrer was sustained, the suit dismissed and complainants appealed to the supreme court.

Reversed for amendment of bill.

Gwin &amp Mounger and Denton & Cox, for appellants.

In Brigins v. Chandler, 60 Miss. 866, it was held that the recital in the tax collector's conveyance that the sale was made on the day of its execution, which was a day subsequent to the day of the sale, did not affect the validity of the conveyance, nor preclude the showing of the fact that the sale was made at. the proper time.

In Hardie v. Chrisman, 60 Miss. 671, it was held that the admitted fact that the sale was made for the taxes of 1866, and not 1867, as erroneously recited in the deed, freed it from objection because of the clerical error by which it was made to show that the sale was for the taxes of 1867.

It will be borne in mind that this is not an attempt to reform a tax deed, but it is a suit to confirm the title acquired by the tax sale. Under our statute, Code 1892, § 3746, the sale and not the tax collector's deed is what vests title in the purchaser. The statute provides that "the taxes shall be charged on the land or personal property taxed, and the sale shall be a proceeding against the thing sold, and shall vest title in the purchaser, etc." The purchaser's rights depend upon what was done and not on the tax collector's failure to recite a correct statement of the facts in his deed. Duke v. Clark, 58 Miss. 465.

If the tax collector had never executed a deed, yet, if he had sold the land as required by law for the taxes of 1896, legally assessed and due and unpaid, as charged in the bill, the purchaser would have obtained the title. Under Code 1892, § 2442, the purchaser could obtain a deed. So also, if the deed executed by the tax collector is void. How vain it would be in case of proper description of land duly assessed and not paid on by the careless owner, and properly sold, to hold the conveyance void for inserting an incorrect year, by an admitted error, when the constitutional requirements of assessment is duly observed and the owner is delinquent in the payment of taxes. Pattison v. Harvey, 33 So. 941.

T. J. Williams, for appellee.

The deed from the tax collector is void upon its face because it shows a sale in March 1897, for the taxes of that year, when in fact no taxes were or could have been due. 25 Am. & Eng. Ency. Law, 683; Spain v. Johnson, 31 Ark. 314; Jacks v. Dyers, 31 Ark. 334.

OPINION

WHITFIELD, C. J.

The deed in this case recited that the tax sale was made in 1897 for the taxes of 1897. The deed is for that reason void on its face. French v. McAndrew, 61 Miss. 187. The real holding of the court in Brigins v Chandler, 60 Miss. 862, is when the facts are looked to closely, merely that parol proof may be introduced to show the true date which a deed should have. As the date of a deed shows merely the time when the contract was made, and not the terms of the contract, it is always competent to show by parol proof a mistake as to the date of the deed. It appears very clearly from the facts that the tax collector in that case simply dated the deed January 27, 1872. It is true that it appears that it was admitted in that case, as a fact, when the evidence was being produced--not by way of demurrer--that the sale was in fact made on the first Monday in January, 1872. If what is meant to be held in that case, beyond what we have stated, to wit, that it is competent to show by parol proof the true date of a deed, is also that it is competent to show that the sale occurred on a different date from the day stated, it is overruled, manifestly, by the case of French v. McAndrew, 61 Miss. 187. It is not competent to show by parol proof that land was sold for taxes of a different year from the year stated in the deed. This is expressly held in the case just cited, and is well settled. See 25 Am. Ency. of Law (1st Ed.) p. 683, note 3. In Maxcy v. Clabaugh, 6 Ill. 26, the court say: "This is an ambiguity which cannot be explained by parol testimony. The deed must show that the land was sold for the taxes of a particular year. In this way the defendant will have it in his power to show that the taxes for that particular year were paid, in order to defeat the deed. The admission of the deed would restrict him in the exercise of this right. The deed was therefore properly rejected." One other observation might be made as to Brigins v. Chandler, supra, and Hardie v. Chrisman, 60 Miss. 671, which is this: That the admission in those two cases was the admission of a fact in the course of the production of evidence, not an admission by way of demurrer only. Both these cases were actions of ejectment, and the admission of fact in both was--so the court held--an admission of power in the tax collector to sell. He could not sell in a particular year for taxes of that same year. The admission in one case was...