H. Weston Lumber Co. v. Strahan

• Decision Date: 23 January 1922
• Docket Number: 22233
• Citation: 90 So. 452,128 Miss. 54
• Court: Mississippi Supreme Court
• Parties: H. WESTON LUMBER CO. v. STRAHAN et al

90 So. 452

128 Miss. 54

H. WESTON LUMBER CO. v. STRAHAN et al

No. 22233

Supreme Court of Mississippi

January 23, 1922

1 EVIDENCE. Evidence held inadmissible to contradict official map on file in General Land Office.

A certified copy of the official map on file in the General Land Office of the government survey of lands, which is made up from the government surveyor's field notes, is the best evidence of what appears thereon; and testimony of a surveyor to the effect that the field notes of the government surveyor of the land in question shows a different survey from that shown on such plat is not admissible to contradict or vary such plat.

2 EVIDENCE. Parol testimony held not admissible to show that land on General Land Office plat was intended to be assessed under another description.

Where land claimed by virtue of a tax deed which according to the official plat in the General Land Office is described as the north half of the Elisha Lott claim, certificate 55, section 28, township 6, range 17, and the assessment and tax deed under which it is claimed describes the said land as the south half of section 6, township 6, range 17 west, and there appears on such official plat of the township in which said lands are situated land answering the later description parol testimony is not admissible to show that the land described as the north half of the Elisha Lott claim was intended to be assessed and sold under the description of south half, section 6, township 6, range 17, west.

HON. D M. RUSSELL, Chancellor.

APPEAL from chancery court of Pearl River county, HON. D. M. RUSSELL, Chancellor.

Suit by the Weston Lumber Company against L. B. Strahan and another. Front a decree of dismissal, plaintiff appeals. Affirmed.

Affirmed.

W. T. McDonald and N. C. Hill, for appellant.

Parker & Shivers, for appellees.

OPINION

ANDERSON, J.

Appellant, Weston Lumber Company, filed its original and supplemental bills in the chancery court of Pearl River county against the appellees, Strahan and Williams, asserting title to the South half of section 6, township 6, range 17 W., in said county, and averring that appellees were pretending to have some sort of claim thereto which was without foundation and praying that such pretended claim be canceled as a cloud upon appellant's title, and that appellees be restrained from depredating on the land. There was a trial on bill, supplemental bill, answer, and testimony, and a decree rendered dismissing appellant's bill, from which this appeal is prosecuted.

The question for decision is whether appellant acquired title to the North half of what is known as the Elisha Lott claim, consisting of three hundred and twenty acres, described as the North half of Elisha Lott claim, certificate 55, section 28, township 4, range 17 W., by virtue of appellant's tax deed of 1888, through which it claims title thereto, under an assessment and sale describing said land as the South half of section 6, township 6, range 17 W. Appellant contends that the land described as the North half of the Elisha Lott claim, and the South half of section 6, is identical--that it is the same land by different description. While the appellees contend that the official government survey and plat of said township introduced in evidence shows that the South half of section 6 as there surveyed and platted constitutes no part of the North half of the Elisha Lott claim which is also there laid down; and therefore the assessment and sale of the land as the South half of section 6 was void.

In considering this question it is well to bear in mind the fundamental principle that in order to authorize a sale of land for taxes there must be a valid assessment, and that there can be no valid assessment and sale thereunder without an opportunity on the part of the owner to be heard at some point in the proceeding (at what point it is not here necessary to decide), at least before the sale is completed, otherwise such a sale would amount to a taking of property without due process of law; and there is no such opportunity for a hearing if the description of the land in the assessment, as well as in the advertisement of sale by the tax collector corresponding to the assessment, is void for in that event neither the assessment nor such advertisement would afford the owner any notice that his land was charged with a tax lien and about to be sold to satisfy such lien. Sections 490 and 401, Code of 1880, governing the manner and effect of the assessment of land which were in force when the land in question was assessed and sold, and which are now embodied in sections 4283 and 4285, Code of 1906 (sections 6917 and 6919, Hemingway's Code), provide that lands shall be assessed according to the government surveys if there be such, and, if not surveyed according to the usual government plan, then they "shall be assessed by the designation used on the government maps" (italics ours) or designated by other means sufficient to furnish a guide for ascertainment by parol evidence of the particular land intended, and (quoting from the statute) if "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 assessment is sufficient. In order to determine whether the assessment in question was valid, it must be understood what is meant in the record by the Elisha Lott claim, for appellant in its bill deraigns its title back to the North half of the Elisha Lott claim. The government survey of Township 17 in which the land is situated was made in ...