Jefferson v. Walker

• Decision Date: 13 May 1946
• Docket Number: 35955.
• Citation: 26 So.2d 239,199 Miss. 705
• Court: Mississippi Supreme Court
• Parties: JEFFERSON et al. v. WALKER et al.

26 So.2d 239

199 Miss. 705

JEFFERSON et al. v. WALKER et al.

No. 35955.

Supreme Court of Mississippi

May 13, 1946

Hathorn & Hathorn and Earle L. Wingo, all of Hattiesburg, for appellant.

Butler & Snow, Satterfield, Ewing &amp Hedgpeth, Alexander & Alexander, Flowers Brown & Hester, and Watkins &amp Eager, all of Jackson, amici curiae.

Hall & Hall, Henry Mounger, and Phillip Singley, all of Columbia, for appellee.

McGEHEE Justice.

The suggestion of error herein is directed solely to that part of the former opinion which holds that the assessment to Alex Jefferson of the 'NW 1/4 of SW 1/4 less 6 A,' found in his assessment of 'E 1/2 of SW 1/4 & NW 1/4 of SW 1/4 less 6 A, Section 2, Township 2, Range 18, 114 acres,' in Marion County, could be applied to a particular tract of land in the NW 1/4 of SW 1/4 by the aid of parol testimony, under sections 3149 and 3151 of the Code of 1930, Sections 9773 and 9775, Code 1942.

In view of the fact that the case of Brown v. Womack, 181 Miss. 66, 178 So. 785, not cited in the original briefs herein, has been called to our attention as being in conflict with the former opinion in the instant case, and in view of the further fact that the cases of Carr v. Barton, 173 Miss. 662, 162 So. 172, Hatchett v. Thompson, 174 Miss. 502, 165 So. 110, and cases therein cited, are again emphasized, with some degree of apparent plausibility as being also in conflict with what we have held in the present case, and finally, in view of the ever-changing policy through the years in the State Land Office, the records of which the briefs of counsel have invited us to examine, as to the cancellation of tax sales to the State, when made under such a description as that here involved--a policy which has been based upon the opinions from the office of the Attorney General rendered in an effort to correctly interpret the former decisions of this Court, which seemingly disclose from time to time a conflict, one with the other, either real or apparent, when the ambiguity on the assessment roll, or in the conveyances for taxes, is a patent ambiguity--we have concluded to reaffirm, as the law of this State, the rule announced in the cases of Reed v. Heard, 97 Miss. 743, 53 So. 400, and Albritton v. Fairley, 116 Miss. 705, 77 So. 651, to the effect that while the statutes hereinbefore mentioned do not permit parol testimony to aid a description where it is utterly void on the assessment roll or in a conveyance for taxes, nevertheless, as expressly stated in Reed v. Heard, and held in effect in Albritton v. Fairley, such testimony may always be resorted to whether the ambiguity is patent or latent, 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.

In the case of Reed v. Heard, supra [97 Miss. 743, 53 So. 402], the Court said that the case of 'Bowers v. Andrews, 52 Miss. 596, is not the law of this state as to what shall constitute a sufficient description of land in an assessment, and has not been the law of this state since the adoption of Section 491, Code 1880, which became Section 3776, Code 1892, and Section 4285, Code 1906 (Sec. 3151, Code 1930, Sec. 9775, Code 1942). The above sections were adopted for the very purpose of abolishing the rule laid down in Bowers v. Andrews, supra.'

The said case of Bowers v. Andrews had held that the deed of a tax collector who sells in invitum by virtue of the power conferred by law, must in itself be sufficient to convey the thing sold. But if that were still true under the statutes involved, parol testimony would not be needed, nor would there be any need to follow a clue to ascertain what land was intended to be assessed and sold. Moreover, the Court, in the case of Reed v. Heard, supra, expressly overruled the case of Smith v. Brothers, 86 Miss. 241, 38 So. 353, which had held that the assessment roll cannot aid the description in a tax sale when it contains a patent ambiguity, in so far as the case was in conflict with the decision then being rendered, and Smith v. Brothers was in conflict therewith only to the extent that it had so held.

The distinction between a patent ambiguity in an assessment, which can be aided by the foregoing statutes, and an utterly void assessment, which cannot be aided by parol testimony, should be kept in mind when applying them, since a patent ambiguity may appear in either of such assessments. A description on an assessment roll, or in a conveyance for taxes, may contain an ambiguity, whether patent or latent, which can be made certain by parol testimony; whereas, an utterly void assessment, such as 'part of' a given tract or division, without the number of acres being given or any other clue on that or any other line of the assessment roll of the land in the tract or division under consideration, cannot be aided by parol.

It has been uniformly held that an assessment which reads, 'a part of', or 'six acres in' a known tract or division is an utterly void description, except in a case where the quantity is given, and, as in Reed v. Heard and Albritton v. Fairley, the other lines of the assessment roll of the land in the same tract or division, or the particular assessment, furnishes a clue which, when aided by parol testimony, will make the description certain. The cases so holding are those of Meyerkort v. Warrington, Miss., 19 So.2d 433, 434; Id., Miss., 20 So.2d 708, describing the land as 'Pt. Sec. 28, Tp. 12, R. 3 E, 5 acres,' and 'Pt. Sec. 29, Tp. 12, R. 12 E, 100 acres,' and 'Pt. Sec. 30, Tp. 12, R. 12 E, 29 acres;' McQueen v. Bush, 76 Miss. 283, 24 So. 196, describing the land as '90 by 225 feet on the west side of Watrenton Road, assessed to John Parkhurst'; Wilson v. Wilson, 97 Miss. 423, 52 So. 353, describing the land as the 'NE 1/2' of a given section, township and range; Nelson v. Abernathy, 74 Miss. 164, 21 So. 150, 151, describing the land as '37 acres in the N 1/2 of Sec. 1, T. 13, R. 4;' Ransom v. Young, 176 Miss. 194, 168 So. 473, 474, describing the land as 'Part of Deerpark, 120 acres,' where Deerpark was shown to consist of five tracts, one containing 38 acres, one containing 138 acres, one containing 160 acres, one containing 86 acres, and the other containing 127 acres; and other similar cases.

The sales of land to the State described as in the foregoing paragraph have, without exception, been stricken from the records in the Land Office as indefinite, uncertain and void, on the approval of the Attorney General, in construing the decisions of this Court in that behalf. In other words, the policy of striking from the records in the office of the State Land Commissioner the tax sales because of uncertainty and indefiniteness in the description has vacillated only as to those sales where the land is described by a known tract or division, 'less' a given number of acres therein.

In the case of McAllister v. Honea, 71 Miss. 256, 14 So. 264, the description in a deed between private dividuals read, 'North half, less six acres, of Section 14, Township 14, Range 6 East, in Monroe County, Mississippi,' and the Court held that, 'The ambiguity of the description relates not to the land conveyed, but to the six acres. * * * The exception, and not the deed as to the lands in Section 14, was void for uncertainty in the description of its subject-matter.'

While the Court in that case was dealing with a description in a conveyance between individuals, as aforesaid, the point decided was that the ambiguity of the description of land excepted from a conveyance did not make the conveyance void for uncertainty, even though the Court observed that the conveyance should be construed against the grantor in a deed between individuals. The inquiry here is whether or not, in view of the many liberal provisions of our taxing statutes in favor of the property owner in regard to the assessment and sale of his land for taxes, it would be a denial of due process to apply the provisions of Sec. 3151, Code 1930, Sec. 9775, Code 1942, and to hold that the assessment against Alex Jefferson of the NW 1/4 of SW 1/4 less 6 acres, of given section, township and range, has the effect of assessing him with all the land that he owned in that 40, placing upon the purchaser at the tax sale the burden of showing, and giving him the right to show, by parol testimony, what land was intended to be assessed and sold; that is to say, whether or not such an assessment is utterly void, in the light of the decisions herein discussed.

The pertinent provision of Sec. 3149, Code 1930, Sec. 9773, Code 1942, is that land may be assessed, 'by any description which will furnish a sure guide for the ascertainment by parol evidence of the particular land intended.' And the provisions of Sec. 3151, Code 1930, Sec. 9775, Code 1942, to be considered in discussing our former decisions, are those which read as follows; 'When part of a known tract or division of land is assessed by a description which identifies it, any other part of it which is assessed but not so identified, shall be held to embrace all of such tract or division not included in the part identified; 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.' And any apparent confusion that exists in the cases is due either to the fact that such of these two provisions as were applicable were not taken into account in a particular case, or the litigant who was relying upon the tax...