Cassedy v. Hartman

• Decision Date: 25 May 1908
• Docket Number: 13,268
• Citation: 46 So. 536,93 Miss. 94
• Court: Mississippi Supreme Court
• Parties: PATRICK J. CASSIDY v. FRANK H. HARTMAN

46 So. 536

93 Miss. 94

PATRICK J. CASSIDY v. FRANK H. HARTMAN

No. 13,268

Supreme Court of Mississippi

May 25, 1908

FROM the chancery court of Lincoln county, HON. G. GARLAND LYELL chancellor.

Cassidy appellant, was complainant in the court below; Hartman appellee, was defendant there. From a decree in defendant's favor the complainant appealed to the supreme court. The object of the suit was to confirm a tax title to land described as "Lot 17 in S. E. 1/4 of S.W. 1/4 Sec 18, Township 7, Range 8 East, in Lincoln County Mississippi." It appeared on the trial that S. E. 1/4 of S.W. 1/4 of the section in question was not within any city, town or village, that it was not divided into lots by the United States government surveys, and that there was no public or recorded map, and never had been one, dividing the tract into lots; that a previous owner of the tract, some years before the assessment in question, made a map thereof on which for his own purposes or pleasure he had drawn lines, pretending to divide the tract into lots and had numbered one of them as 17, and that no record whatever was made, or other publicity given, to the map until after the beginning of this suit, when it was placed on record at complainant's instance. The assessment made no reference to the map nor did it in anyway point to the evidence which would fix the location of the lot within the tract.

Affirmed.

A. C. & J. W. McNair, for appellant.

It was contended by counsel for appellee that Lot 17 of S. E. 1/4 of S.W. 1/4, Section 18, Township 7, Range 8 East was not a designation by governmental survey, and that therefore, it could not be validly assessed and sold by the Warren designation. This land is outside the corporate limits of a municipality, and we do not know of any law which forbids the owner from subdividing the tract into lots and numbering and selling the lots by the number designation. We think there is none.

By Code 1892, § 3774, and Code 1906, § 4283, it is provided, inter alia, "If the owner of any land be unknown, it shall be assessed to 'unknown.' Lands not surveyed according to the plan of the government surveys shall be assessed by designation used on the government maps, or by other descriptions or names by which they may be distinguished. And if parts of such lands, shall be owned by different persons, such parts shall be referred to by quantity, and such memorandum as may be convenient to show the locality."

By Code 1892, § 3775, and Code 1906, § 4284, a failure to observe the requirements of the last preceding section (§ 3774) shall not vitiate any assessment, if the land be so described as to be identified; and it shall be sufficient identification of land to describe it as the land of (the person owning or claiming it) occupied by , or that part of (Section or other known division, designating it) owned or claimed by , or the lot on which resides or the lot occupied by ; or by the name by which it may be known; or by any description which will furnish a sure guide for the ascertainment by parol evidence of the land intended.

Code 1892, § 3776, and Code 1906, § 4285, provide that in assessing land, a description of it as a part of a designated tract or division shall be held to embrace such part as is the subject of separate ownership, a one tract or division, whether owned by one or several jointly; and when parts of a designated tract or division shall be sold for taxes, the sale shall pass the title of such part as was the subject of such ownership when it was assessed; and a sale of a specified number of acres of a tract shall pass an undivided interest in the whole tract equal to the proportion which the number of acres, or portion sold, bears to the whole tract, etc., * * * 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. The conveyance shall vest in the purchaser a perfect title to the land for taxes, subject to the right of redemption; and no such conveyance shall be invalidated in any court except by proof that the land was not liable to sale for the taxes, or that the taxes for which the land was sold had been paid before sale. Code 1892, § 3718, Code 1906, § 4832.

By Code 1892, § 3814 (Code 1906, § 4829), it is provided that "Land in cities, towns or villages shall be sold by lots or other subdivisions or descriptions by which it is assessed, etc."

The description, Lot 17 of S. E. 1/4 of S.W. 1/4, Section 18, Township 7, Range 8 East is not a patent ambiguity. It is certain on the face of the deed and assessment roll, and to render it uncertain you must look beyond the deed and roll. It is said, however, that the court will take judicial knowledge that there is, according to governmental survey no such a lot or description. Grant it so. The revenue laws of this state recognize the legal right of the land owner to divide and sell his land in small parcels or lots, and the sections of the statutes in reference to the assessment, taxing and sale for taxes, were drafted and enacted with full recognition and in view of this right.

The court, speaking through Justice Campbell, along this line, said in Cogburn v. Hunt, 54 Miss. 676, "That provision: of Code 1871, § 1676 (Code 1880, § 490; Code 1892, § 3775; Code 1906, § 4284) which, after directing how the assessor shall arrange lands and lots on the assessment roll, and how he shall designate them, declares, 'But no failure to observe any of these requirements shall be held to vitiate any assessment, if the land or lot be so described as to be identified,' does not in any way affect the distinction between patent and latent ambiguities, nor relieve against the necessity of so describing the land assessed as to be identified by the assessment. It simply authorizes some other mode of identification than description by range, township and section and subdivisions of sections, or squares, lots and subdivisions."

At the time Warren platted and partited the S. E. 1/4 of S.W. 1/4 into lots, and sold them, there was no statutory requirement that the map should be filed in the chancery clerk's office. This requirement first appears in the Code of 1892, and was intended only to apply to towns subsequently incorporated, or with additions to towns surveyed and platted after its enactment. Wellborn v. Muller, 84 Miss. 726, 36 South., 544.

The description of the land as Lot 17 of S. E. 1/4 of S.W. 1/4 Section 18, Township 7, Range 8 East, in the deed and roll defines its identity and fixes its location. The designation within itself is complete--there is no ambiguity or uncertainity in it. The only question is, is there such a lot as 17 in the designated governmental survey?

At common law, aside from the statute broadening the rule of admission of parol evidence in tax sales, parol testimony is admissible to apply the description in the deed and roll to the land.

Justice CAMPBELL, in his opinion in Barns v. Andrews, 52 Miss. 596, says "Thus a deed to 'a lot' or to 'the lot' is void, but a 'deed to a lot set forth in some other paper or 'proceeding referred to, or located in a clearly defined manner, or designated by name or number is good. So also a conveyance of 'my residence' is good, because the fact of ownership and possession is referred to by the use of the possessive pronoun, and the property is susceptible of identification. If it should turn out that I owned more than one residence, then, inasmuch as the uncertainty thereby produced would spring from this extrinsic fact, other extrinsic facts may be adduced to show which residence is intended." We also refer you to the instances given by Justices CAMPBELL and SIMRALL in the same case.

The record and the testimony disclose that for over thirty years the land had been designated, known and dealt with by sundry individuals and the state and county revenue authorities as Lot 17. Warren, the original owner, had the legal right to "dub" it and name it as Lot 17, as much so as if he had called it "Beaver Dam," "White Acre," "Black Acre," "Glencoe" or "Rob Roy;" "What's in a name? That which we call a rose, by any other name would smell as sweet!"

We are well aware that the deed or "roll must furnish the clue which, when followed by the aid of parol testimony conducts certainly to the land intended;" Dodds v. Marks, 63 Miss. 443. The clue, if such is needed in this case, is S. E. 1/4 of S.W. 1/4, Section 18, Township 7, Range 8 East. Apropos to this, we cannot do better than quote the language of this court in McQueen v. Bush, 76 Miss. 283, 24 South., 196, where it is said "The reference to Section 34 is as much and as essentially a part of the description as any other part of the description in the assessment, sale, or conveyance." In Crawford v. McLaurin, 83 Miss. 265, 35 South., 209, 949, it is said, "It will be noted in these eases, the 'starting point' was furnished by the description on the tax roll, and the 'clue' was found in some terms of an accepted legal definition as 'Section' and 'Township,' or 'Lot' or 'Square,' or the name of the street, found either in a record of governmental survey, or in a municipal survey and map."

The land was assessed and sold as that of an unknown owner--and this, too, under the facts of this case, is a "clue." If we take these "clues" furnished by the deed and roll, and follow them by parol testimony, there is no difficulty in identifying and locating the lot sold. The description is sufficient if the property can be identified by a competent surveyor with reasonable certainty, either...