Carr v. Barton

• Decision Date: 03 June 1935
• Docket Number: 31711
• Citation: 162 So. 172,173 Miss. 662
• Court: Mississippi Supreme Court
• Parties: CARR v. BARTON et al

162 So. 172

173 Miss. 662

CARR v. BARTON et al

No. 31711

Supreme Court of Mississippi

June 3, 1935

Suggestion Of Error Overruled September 16, 1935.

(Division B.)

1. CONSTITUTIONAL LAW.

"Due process" requires that, to create lien, tax assessment must describe property with certainty or contain data clearly leading to identification (Code 1930, secs. 3120, 3122, 3148, 3149).

2 TAXATION.

Description of lands in tax assessment roll held not aided by name inserted in column marked "Name of owner" (Code 1930, secs. 3148, 3149).

3 TAXATION.

Assessment of lands not described on tax assessment roll in manner enabling surveyor to locate lands therefrom nor in manner directed by statute permitting lands to be described by naming owner and occupant held void (Code 1930 secs. 3148, 3149).

4. TAXATION.

Property properly described in tax assessment roll may be legally assessed to unknown person or to person other than owner (Code 1930, secs. 3120, 3122, 3148, 3149).

5. EVIDENCE.

If tax assessment roll describes lands as owned, occupied, or claimed by named person, parol evidence is admissible under statute in aid of description (Code 1930, sec. 3149).

HON. T. P. GUYTON, Chancellor.

APPEAL from chancery court of Attala county HON. T. P. GUYTON, Chancellor.

Bill by Kittie Carr against W. T. Barton and others. From a decree granting plaintiff partial relief, plaintiff takes a direct appeal and defendants take a cross-appeal. Affirmed on direct appeal and on cross-appeal reversed and bill dismissed.

Affirmed on direct appeal and reversed on cross-appeal and bill dismissed.

G. S. Landrum and Thos. Land, both of Kosciusko, for appellant.

Upon failure of an individual property owner to pay his taxes when due, or even at the expiration of the period of grace, the Constitution of the State of Mississippi, provided that the Legislature shall provide by law for the sale of all delinquent tax lands, and further that the court shall apply the same liberal principles in favor of tax titles as in sale by execution and provided further for the time and conditions of redemption.

Section 3120, Code of 1930; Dodds v. Marx, 63 Miss. 443; Sections 3151, 3161, 3166, 3252, 3257 and 3275, Code of 1930.

One of the main grounds relied upon by appellees in their demurrer to appellants' bill was that the Chancery Court was without jurisdiction in the matter of confirming tax titles in this case, but the Legislature went further and provided for the manner and the proceedings to be followed to confirm a tax title.

Section 402, Code of 1930.

It is the contention of the appellant that this case should be reversed immediately upon the trial court holding the deed reflects a patent ambiguity upon its face. It is clear from the description in the deed as to these separate pieces of property that by taking the deeds to the property itself, and the deeds to the surrounding property, and identify the property in question, by the use of this extrinsic evidence.

Patterson et al. v. Morgan, 161 Miss. 807, 138. So. 362; Bowers v. Andrews, 52 Miss. 596; Reed v. Heard, 97 Miss. 743; Railroad v. LeBlanc, 74 Miss. 650; Standard Drug Co. v. Pierce, 111 Miss. 354.

In the case of Albritton v. Farley, 116 Miss. 705, where the tax deed described a piece of property as: "One lot fifty feet on the east one-half of lot seven to twelve," and where the records show that lots seven to twelve are one hundred sixty feet long, running east and west, the court held that this parol testimony was admissible to show that the tax deed called for fifty feet on the east one-half of an eighty-foot tract.

Wheeler v. Lynch, 89 Miss. 157.

Even though there was an ambiguity in the description of the chancery clerk's certificate of conveyance, there was still enough of a description to give the clue from which parol testimony could be introduced to cure any ambiguity that might exist.

Martin v. Smith, 140 Miss. 168, 105 So. 494; Lochte v. Austin, 69 Miss. 271; Reber v. Dowling, 65 Miss. 259; Hanna v. Renfroe, 32 Miss. 125; Louis v. Siebles, 65 Miss. 251; Wilkerson v. Harrington, 115 Miss. 637.

It cannot and has not been denied that these lands were taxable.

Barksdale v. Gilchrist-Fordney Co., 110 Miss. 561.

The defendants merely denied the allegations of the bill, which is insufficient and no testimony or evidence should have been admitted under their answer.

Metcalfe v. Wise, 132 So. 102; White v. Price, 80 So. 768; Section 402, Code of 1930; Washington v. Soria, 19 So. 485; Mountein v. King, 77 So. 630; Norwich Union Fire Ins. Co. v. Standard Drug Co., 117 Miss. 429.

It is obvious that the defendants must stand in this court on a general denial of the material averments in appellant's bill and that the appellant is entitled to a judgment in this court on the pleading in this case.

Fall v. Hafter, 50 Miss. 606; Anderson v. Newman, 60 Miss. 532; Norton v. Cooley, 45 Miss. 125; Sledge v. Dickson, 81 Miss. 501; Eaton v. Lumber Co., 46 So. 70; Myers v. Martinez, 95 Miss. 104.

The legal presumption is that a tax deed recites legal sale and in the absence of proof to the contrary, it will be presumed that the deed recites the facts.

Thibodeaux v. Havens, 116 Miss. 476; Mixon v. Clevenger, 74 Miss. 67; Jones County Land Co. v. Fox, 120 Miss. 798; Johnson v. Lake, 139 So. 455.

Ralph Landrum, of Kosciusko, for appellees.

Section 379 of the Mississippi Code of 1930 shows that all defense may be made in answer.

Sections 7149-7153, inclusive, show requirements for valid maps and plats.

Section 3149, Mississippi Code of 1930, shows ways in which land may be correctly described for sale, and has been the law since 1872.

Sections 1131, 742 and 1924 of the Mississippi Code of 1930 show what process may be issued on Sunday, and what are violations of the Sabbath.

It is the idea of the appellee that an advertisement in a Sunday newspaper, being in the nature of a process, is absolutely void, and conveys no notice whatever to the owner of the land that the land is delinquent for taxes.

Sections 1131, 742 and 1924, Code of 1930; 26 R. C. L. page 412; Schwed v. Hartwitz, 23 Colo. 187, 47 P. 295, 59 Am. St. Rep. 221; 13 A.L.R. 663, 669; Scammon v. Chicago, 40 Ill. 146; McChesney v. People, 145 Ill. 614, 34 N.E. 431; Sawyer v. Cargile, 72 Ga. 290.

The deed on which Mrs. Carr relies nowhere gives the block.

Sack v. Gilmer Dry Goods Co., 115 So. 339, 149 Miss. 296.

The name of the person to whom the land is assessed is not descriptive of the land, but it is descriptive of the reason for the sale of land, and it will not furnish a clue which if followed would identify the tract.

Bowers v. Andrews, 52 Miss. 596; Dodds v. Marks, 63 Miss. 443; McQueen v. Bush, 76 Miss. 283.

An insufficient description of land on the assessment roll cannot be aided by extrinsic evidence unless the roll itself furnishes the clue, which followed by the aid of such evidence would lead to the land intended.

Sims v. Warren, 68 Miss. 452, 10 So. 40; I. C. R. R. Co. v. Baldwin, 77 Miss. 788, 28 So. 948; Crawford v. McLaurin, 83 Miss. 265; Boone v. Dulion, 80 Miss. 583, 32 So. 1.

The demurrer of the defendants should have been sustained.

Boone v. Wells, 91 Miss. 799, 45 So. 571.

In order to warrant introduction of parol testimony to make description in deed definite and certain, there must be a definite clue shown by and from the official map.

Lott v. Rouse, 111 So. 838, 147 Miss. 802; Cassedy v. Hartman, 93 Miss. 94, 46 So. 536; Pearce v. Perkins, 12 So. 205, 70 Miss. 276; Nelson v. Abernathy, 21 So. 150, 74 Miss. 164; Crawford v. McLaurin, 83 Miss. 275; McQueen v. Bush, 76 Miss. 283; Bowers v. Andrews, 52 Miss. 596; Dodds v. Marx, 63 Miss. 443; Boone v. Mills, 45 So. 571, 91 Miss. 799; Gilchrist v. Thigpen, 114 Miss. 183, 74 So. 123; Smith v. Brothers, 86 Miss. 241.

Argued orally by G. S. Landrum, for appellant, and by Ralph Landrum, for appellee.

OPINION

Ethridge, P. J.

The appellant, Mrs. Kittie Carr, was plaintiff in the court below, and, on June 17, 1933, filed her bill in the chancery court of Attala county to confirm a tax title to property in said county described as follows: House and west half of lot seven, and ten feet of lot eight, and one and one-half feet west side of the east half of lot seven, section thirty-four, township fifteen, range eight; house and two-acre lot in section thirty-four, township fifteen, range eight; north one-half of the northwest one-fourth less one-third acre to Mrs. Carr and five acres, southwest one-fourth of the northwest one-fourth of section four, township fourteen, range eight.

The bill was filed against W. T. Barton and wife, Mrs. Delina Barton, the Bank of Ethel, and J. G. Smythe, trustee, and there was attached to the bill as an exhibit a deed from the chancery clerk attempting to convey to Mrs. Kittie Carr the above described lands. The tax sale occurred on May 4, 1931, for the taxes of 1930, and the deed was dated May 9, 1933.

The bill included also a notice or order of the board of supervisors reciting that on receiving the report of the tax collector it was found that it was impossible to sell all the lands delinquent at the time required by law, the first Monday in April, and the board fixed the first Monday in May, 1931, as the date of sale, and directed notice to be given thereof.

The bill was demurred to, the demurrer was sustained, and the bill was amended. The defendants answered the amended bill embracing in their answer a demurrer.

The chancellor, after hearing the testimony, including the introduction of the various deeds and maps, held that the tax deed was void for a patent ambiguity as to all the lands embraced in the bill, except that described as the "north one-half...