Hatchett v. Thompson

• Decision Date: 13 January 1936
• Docket Number: 31998
• Citation: 165 So. 110,174 Miss. 502
• Court: Mississippi Supreme Court
• Parties: HATCHETT et al. v. THOMPSON

165 So. 110

174 Miss. 502

HATCHETT et al. v. THOMPSON

No. 31998

Supreme Court of Mississippi

January 13, 1936

Division B

1 TAXATION.

Tax deeds which were not sealed by chancery clerk as required by statute held void (Code 1930, section 3273).

2 TAXATION.

All requirements of law for sale of property for taxes must be complied with.

3 TAXATION.

Person relying upon tax title must show its validity.

4. MORTGAGES.

Provision of trust deed that advances by mortgagee to complete crop or protect security in insurance, taxes, or other superior liens were intended to be secured by trust deed held to contemplate that taxes paid by mortgagee should become part of debt secured by trust deed so as to preclude mortgagee's acquisition of adverse tax title.

5. CONSTITUTIONAL LAW.

Due process requires that, to create lien, tax assessment must describe property with certainty or contain data clearly leading to identification.

6. TAXATION.

Tax deed for seventy acres within eighty-acre tract, which failed to describe property in such way that surveyor could take description in deed and from it locate property assessed, held void for uncertainty, where assessment upon which deed was based was not for whole eighty acres, but only for seventy acres within eighty-acre description.

7. TAXATION.

Person relying on tax title was required to prove title out of government in addition to tax deed, notwithstanding that defendant claimed under continuous possession for preceding twenty years, where as to tenants and unknown persons claiming interest in land who did not appear, no proof and no decree proconfesso were taken.

HON. JAS. A. FINLEY, Chancellor.

APPEAL from the chancery court of Clay county HON. JAS. A. FINLEY, Chancellor.

Suit by T. E. Thompson against Ack Hatchett and others. Decree for complainant, and defendants appeal. Reversed and remanded.

Reversed and remanded.

Frank A. Critz and B. H. Loving, both of West Point, for appellants.

The copies of the said tax deeds exhibited to the bill affirmatively show that the official seal of the chancery clerk was not affixed to said purported tax deeds, and that the same were not attested by said official seal.

The tax deeds were void because they were not attested by the seal of the chancery clerk.

Section 3273, Code of 1930.

It is a well settled rule in our state that all the requirements of the law providing for the sale of property for taxes, from the beginning to the end thereof, must be strictly complied with, and that one relying on a tax title must show its validity.

Dunbar v. Interior Lbr. Co., 102 Miss. 623, 59 So. 852; McLemore et al. v. Anderson, 92 Miss. 42, 43 So. 878; Bowers v. Chambers, 53 Miss. 259; Adams v. Mills, 71 Miss. 150, 14 So. 262; Sintes v. Barber, 78 Miss. 585, 29 So. 403; Pharis v. Conner, 3 S. & M. 87; Burton v. Kramer, 123 Miss. 824, 86 So. 578; McAllum et al. v. Spinks et al., 91 So. 694; 37 Cyc. 1431; 26 R. C. L., page 419, sec. 377.

The mortgagee could not purchase at the tax sales.

McLaughlin v. Green, 48 Miss. 209; Blackwell on Tax Titles, sec. 399; 37 Cyc. 1347.

The tax deed covering the first tract of land was void because of uncertainty and ambiguity.

Carr v. Barlow, 162 So. 172.

Appellee's proof in this case failed to show that the title to the land in question had ever passed out of the United States Government.

Acoff et al. v. Roman, 159 So. 556, 172 Miss. 141.

Roberds & Malone, of West Point, for appellee.

The provision for impressing the deed with a seal would appear to be directory and not mandatory.

The wording of the statute, both those used and omitted, all taken together, indicate the provision is directory. While the statute uses the word "shall," yet it also says that the conveyance shall be "essentially" as set out.

Section 3273, Code of 1930.

Acknowledgment, with signature, constitute proof of the genuineness of the document.

The tax deed was prima facie evidence of legal assessment and sale of the land.

Salter v. Polk et al., 159 So. 855.

Under the present scheme of conveying tax titles the clerk has only the duty to receive the redemption money and after time for redemption execute the deed, which has the effect only of giving right to possession. The sale is made by the collector; he advertises the property; he cries it off; he is present at the sale (the clerk is not); he is vested with title for purpose of sale--the part of the clerk is purely ministerial. Title is vested by the sale and transmittal of the list--"perfect title"--without right of possession and subject to right of redemption.

As a general rule questions cannot be raised in the high court which were not raised in the lower court. To originate and decide questions here would be to assume original jurisdiction. The office of this court is to revise the action of the lower court and not to originate new questions not acted on below.

Prussell v. Knowles, 4 How. 90; Doe v. Natchez Ins. Co., 8 S. & M. 197; Commercial Bank v. Martin, 9 S. & M. 613; Anderson v. Leland, 48. Miss. 253; Griswold v. Simmons, 50 Miss. 137; George v. Louisville Ty., 88 Miss. 306, 40 So. 486; Adams v. Clarksdale, 95 Miss. 88, 48 So. 242; Goodwin v. Mitchell, 38 So. 657; Vicksburg Mfg. Co. v. Jaffray Const. Co., 94 Miss. 282; Huston v. King, 119 Miss. 347, 80 So. 779; Williams v. Butts, 124 Miss. 661, 87 So. 145.

The first time the question of seal was ever raised was in the assignment of errors after the record had gone to the Supreme Court.

Not only was there no issue or objection made as to the seal but it was affirmatively agreed the deed was good in that respect.

The acts of an attorney so far as the procedure are concerned are always binding on the client.

Newman v. Bank, 67 Miss. 770; Scarbrough v. Harrison Naval Stores Co., 95 Miss. 497; Noxubee County v. Long, 141 Miss. 72, 106 So. 83; Gorham v. Gale, 17 Am. Dec. 549; Harvey v. Thorpe, 65 Am. Dec. 344; Goodwin v. State, 74 A. 1101, Ann. Cas. 1913E, 940; Pratt v. Conway, 71 A. S. R. 602; Ball v. State Bank, 42 Am. Dec. 649; Jenkins v. Gillespie, 10 S. & M. 31; Swartz v. Morgan, 43 A. S. R. 786.

Thompson had the right to purchase at the tax sales.

Martin v. Swofford, 59 Miss. 331; Jones v. Black, 88 P. 1052, 90 P. 422, 11 Ann. Cas. 752; 11 Ann. Cas. 759; 24 A. S. R. 788; 38 L.R.A. (N.S.) 334; Moore v. Boagni et al., 35 So. 716; Waterson v. Devoe, 18 Kan. 223; Williams v. Townsend, 31 N.Y. 415; Walthall v. Rives, 34 Ala. 91.

There is no trust relation between grantor and beneficiary, only relation of debtor and creditor.

The mortgagor is in possession and enjoyment of the premises. The beneficiary has only a lien, security, for the debt; he has neither title, possession nor enjoyment. The mortgagor can transmit the legal title by descent, devise, or deed.

Buck v. Payne, 52 Miss. 271; Jones v. Black, 11 Ann. Cas. 754.

If there be a patent ambiguity in the description of land excepted from a conveyance, the exception, not the deed, is void for uncertainty.

McAllister v. Honeas, 71 Miss. 258; Spears v. Robinson, 71 Miss. 775.

Title was properly deraigned and the bill set out patents from the government, sworn to, and not denied.

Salter v. Polk, 159 So. 855.

OPINION

Ethridge, P. J.

In the court below, the appellee was the complainant, and filed a bill against Ack Hatchett, Pat Hatchett, Roy Bean, trustee Charley Davidson, George. Davidson, L. C. Brand, Elbert Turner, and John Brand, and all persons having or claiming any legal or equitable interest in the real property described therein, alleging that all the named persons resided in Clay county, Mississippi. The bill further alleged that the parties named are adults and are the only persons known to complainant having or claiming any interest, legal or equitable, in said property; that the complainant is the owner of the real property in Clay county, Mississippi, described as the west half of the southwest quarter of section ten, township fifteen, range four east, less ten acres described as beginning at the southeast corner of west half of said southwest quarter, and running thence the certain distance described in the bill. The complainant further alleged in the bill that he acquired title to said lands under a tax deed executed to him by Julia H. Johnson, chancery clerk of Clay county, Mississippi, on April 4, 1934, now of record, a copy of which is made Exhibit A to the bill of complaint; that, at the time of the assessment of said lands and at the time of the sale thereof and for over twenty years prior thereto, said lands had been owned, occupied, used, and cultivated by Ack Hatchett, who was continuously claiming to be the owner thereof, and that he failed to pay the 1931 taxes due thereon; that the time for redeeming said land from said tax sale has expired; that said lands were sold by the United States government to the parties named in the bill; and also set forth the description of another tract of land described as the west three-quarters of the west half of the northwest quarter of section ten, township fifteen, range four, E. sixty acres, alleging that he acquired title thereto by the terms of a tax sale deed executed by Julia H. Johnson, chancery clerk, a copy of which is attached to the bill as Exhibit B. It was further alleged that, at the time the lands were sold for taxes, the complainant held a trust deed executed by Ack Hatchett, dated March 1, 1932, covering the first-described tract of land and also thirty acres of land on the south side of the west three-quarters of the north half of the northwest quarter of section ten, township fifteen, range four, and that it was the duty of the grantor in the deed of trust to keep the taxes paid on the lands, but that he...