Johnson v. Lake

• Decision Date: 01 February 1932
• Docket Number: 29721
• Parties: JOHNSON v. LAKE
• Court: Mississippi Supreme Court

139 So. 455

162 Miss. 227

JOHNSON v. LAKE

No. 29721

Supreme Court of Mississippi

February 1, 1932

Division B

1. MUNICIPAL CORPORATIONS.

Tax sale by city tax collector on day other than that provided by law is void and ineffective.

2. MUNICIPAL CORPORATIONS.

Where municipal tax deed shows on face that sale was not made on day regularly fixed, party claiming thereunder has burden to show that sale was properly postponed (Code 1930, section 1578).

3. APPEAL AND ERROR.

Question involving validity of tax deed because of insufficient description cannot be reviewed, where maps introduced were not brought up.

HON. J L. WILLIAMS, Chancellor.

APPEAL from chancery court of Washington county HON. J. L. WILLIAMS Chancellor.

Suit by Lewis Johnson against J. A. Lake. Decree for the defendant and the plaintiff appeals. Reversed, and cause remanded.

Reversed and remanded.

B. B. Carmichael, of Greenville, for appellant.

In the case of Metcalfe v. Wise, 132 So. 102, Justice Griffith held that a tax sale made on the first Monday of April, 1926, by the city of Greenville, was void under the rule first announced in the Planters Gin & Milling case, 103 So. 797, by reason of the erroneous date of sale.

The undisputed record shows that the city clerk of the city of Greenville wholly failed to make up, certify and file with the chancery clerk the tax record in the manner and form required by every municipality by chapter 307, Laws of 1920.

Section 7013 Hemingway's 1927 Code provides that all ordinance must be passed by the city authorities prescribing the terms and condition under which lands acquired at tax sale may be sold. No ordinance was passed in this case and Mr. Lake purchased the land from the city of Greenville at private sale.

Byrd v. Dickson, 120 So. 562.

It has been repeatedly held that the description found in the assessment roll and the tax deed must furnish a clue of identification of the land intended to be conveyed.

In the tax deed of April 2, 1923, the description of the land is incomplete, because it fails to recite that the land intended to have been conveyed was lot 9, block 2, of the subdivision of "block 5 and of lots 6 to 17, inclusive of block 6," but on the other hand the description fails to make mention of "block 6" at all and the appellee made no effort to apply the description on the land roll for the year 1922.

Although it may be possible to show to a moral certainty what the maker of an instrument intended, rather than what he had expressed parol evidence is not admissible. Extrinsic evidence is admissible to show to which of several subjects a description applicable to each was intended to apply, but not to bring a particular thing under a description not applicable to it.

Bowers v. Anderson, 52 Miss. 596.

J. A. Lake, Jr., and Wynn & Hafter, all of Greenville, for appellee.

The lists of lands sold for taxes in the years 1923 and 1924 were introduced, and it was shown that the property involved here was included in those lists. With the introduction of this evidence, and with the introduction of certain evidence which will be hereinafter referred to, covering the appellee's contention that the appellee is now the owner of the property involved by virtue of adverse possession, the appellee, relying on section 1578 of the Mississippi Code of 1930, based his case.

The rule applied in the case of Metcalfe v. Wise, 132 So. 102, simply states that, where a sale is proven to have been made at the wrong date, then, that sale is invalid. However, the complainant, in making his proof, has wholly failed to show that a sale was not made at some other time than that designated for the regular sale of lands for the non-payment of taxes.

Section 32 of the Code of Ordinances, states that chapter 116 of the Mississippi Code of 1892 shall govern the powers of the municipality as to the sale of land for the non-payment of taxes. Section 3850 of the Mississippi Code of 1892, being a part of chapter 116 of that code, makes provision for the sale of lands which were not sold at the regular time. The defendant and appellee here properly relying on section 1578 of the 1930 Code, it therefore was necessary for the complainant and appellant here, in order to make out his case, to prove that this land was not sold in the proper manner at some time other than the regular time by virtue of section 3850 of the 1892 Code.

The complainant and appellant next relies upon the fact that the city clerk did not properly certify the tax list which covered these sales. It is submitted that section 3273 of the Mississippi. Code of 1930, which provides in part,--"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 or that the sale had been made at the wrong time or place" obviously eliminates this fact as a ground for setting aside the tax sale here involved.

Section 3817 of the 1892 Code, and section 3273 of the 1930 Code, apply to and cover sales made by the city of Greenville.

The deeds involved here did contain a sufficient and definite enough reference to the land involved in this lawsuit; the presumption being that, by virtue of section 1578, the defendant and appellee has shown a good prima facie title and the evidence introduced by the complainant and app...