Mixon v. Clevenger

• Citation: 74 Miss. 67,20 So. 148
• Court: United States State Supreme Court of Mississippi
• Decision Date: 18 May 1896
• Parties: T. J. MIXON ET AL. v. L. H. CLEVENGER

20 So. 148

74 Miss. 67

T. J. MIXON ET AL. v. L. H. CLEVENGER

Supreme Court of Mississippi

May 18, 1896

March 1896

FROM the chancery court of the second district of Perry county HON. W. T. HOUSTON, Chancellor.

The opinion states the case.

Decree reversed and bill dismissed.

N. C Hill and Brame & Alexander, for appellants.

1. The description in the tax deed and in the assessment roll is wholly free from any ambiguity. The field notes of the United States survey, as appears from the records thereof in the land commissioner's office, show that Bowie river is a monument in said survey. It is noted on the survey as traversing section 32, township 5, range 1 west, in Perry county, from north to south. This court takes judicial notice of the government surveys. Muse v. Richards, 70 Miss. 581. The pleadings made the description certain, and no proof was necessary. The cases relied on by appellee do not meet this case. The case of Sims v. Warren, 68 Miss 447, was that of a patent ambiguity, and the roll furnished no clue to aid it. The bill in this case admits that the land assessed and sold for taxes by said description, was the land claimed by appellant as being east of Bowie river. The case of Dingey v. Paxton, 60 Miss. 1038, was the case of a patent ambiguity, with nothing on the roll to aid it. Even that description, under the act of 1878, would be good. The same may be said of Cogburn v. Hunt, 54 Miss. 675 and Morgan v. Schwartz, 66 Miss. 613. The more liberal rule prevailing since the act of 1878 and the code of 1880, and under the present law, may be seen in Herring v. Moses, 71 Miss. 620; Lochte v. Austin, 69 Miss. 271; Reber v. Dowling, 65 Miss. 259. In Kyle v. Rhodes, 71 Miss. 487, we find a description sustained where land was described by reference to well-known designations by which the boundaries can be made certain.

2. Mixon did not buy. McCoy bid in the land at the sale, and it was by a subsequent arrangement that the deed was executed to both. There was nothing objectionable in this. There is no law prohibiting a deputy to buy. The whole doctrine is discussed in Blackwell on Tax Titles, secs. 400-405. It is fully discussed in 25 Am. & Eng. Enc. L., 713. See, especially, Hare v. Cornell, 39 Ark., 196; O'Reilly v. Holt, 4 Woods, 645. The principle applicable is not different from that applied in Browne v. Carlisle, 62 Miss. 595.

3. It sufficiently appears that the roll was approved. Approval will be presumed. Grayson v. Richardson, 65 Miss. 222; Morgan v. Blewitt, 72 Miss. 903. There is no competent evidence as to what the roll shows. It is manifest beyond doubt that the word received was intended to mean approved. Mills v. Scott, 62 Miss. 525; Grayson v. Richardson, supra. By the laws of 1892 (Laws, p. 28), all assessments of lands for 1889 and 1890 were validated, and this cures the defect, if there was such.

Watkins & Travis, for appellee.

The decree of the lower court is correct.

1. The land in dispute was not described in the assessment roll on which the alleged sale was based. It is so ambiguous as to amount to nothing. Sims v. Warren, 68 Miss. 447; Dingey v. Paxton, 60 Miss. 1038; Cogburn v. Hunt, 54 Miss. 675; Morgan v. Schwartz, 66 Miss. 613; Pearce v. Perkins, 70 Miss. 276.

2. Appellants admit in their answer that they do not rely on the sale made by the tax collector, but on an agreement and sale subsequently made, when Mixon became a party to the transaction. The title is, for this reason, void. 13 Smed. & M., 330; 22 Am. & Eng. Enc. L., 689.

3. One of the alleged purchasers was a deputy sheriff at the time of the sale. So far as we have been able to ascertain, this court has never passed upon the particular point, but the principle seems to be well established elsewhere, and by implication here, that a deputy cannot purchase at his principal's sale. See McLeod v. Burkhalter, 57 Miss. 65. The case of Flournoy v. Smith, 3 H., 62, also holds this by implication. See, also, 22 Am. & Eng. Enc. L., 597.

4. The assessment roll under which the sale was made was never approved by the board of supervisors, as appears from the evidence. "Received as corrected" is no approval, directly or by implication. Davis v. Vanarsdale, 59 Miss. 367; code 1880, § 500.

5. From the evidence, the land must have been offered in a body, and not in the smallest legal subdivisions, as required by § 521, code 1880.

COOPER C. J. WHITFIELD, J., dissenting.

OPINION

COOPER, C. J.

The appellee exhibited his bill in the chancery court of Perry county to cancel, as a cloud upon his title, a hostile tax title, claimed by the appellants, and, on final hearing, the court decreed in his favor. The lands are a part of the east half of section 32, township 5 north, range 13 west. They were assessed for the year 1890, under the following description: "East half west of Bowie, section 32, township 5 north, range 13 west, " and were so described in the conveyance from the tax collector to appellants.

The assessment roll, on which the lands were sold, was properly returned by the assessor, and went into the custody of the board of supervisors. At the August meeting of the board, an order was made as follows: "Ordered, that the real assessment of 1889 be now taken up for examination and correction." At the same meeting, and subsequent to the above order, the following order was made: "Ordered, that the real assessment for 1889 of this county be received as corrected."

T. J. Mixon, one of the appellants, was deputy sheriff to McCallum, the sheriff and tax collector, and on the day of the tax sale acted as clerk to the collector, noting down the lands as sold by him with the names of the purchasers. The land of the appellee was bid in at the tax sale by the appellant, McCoy. Afterwards, and before the deed was made by the tax collector, an agreement was entered into between Mixon and McCoy, by which Mixon was to pay one-half of the amount bid, and was to have one-half interest in the land, and the collector thereupon, being requested by the parties, made the conveyance to Mixon and McCoy.

The grounds upon which the tax deed is assailed are (1) because of ambiguity in the description of the land on the assessment roll and in the deed; (2) that the assessment roll was never approved by the board of supervisors; (3) that the deputy of the tax collector was a purchaser at the tax sale; and (4) that the whole tract was sold without having first been exposed to sale in the smallest legal subdivision, as required by statute.

By § 491 of the code of 1880, it was, among other things, provided that "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." Conceding, for the purposes of this decision, without deciding, that there is an ambiguity in the description of the land, we think it clear that it has been fully explained and the land definitely and certainly identified. No parol proof was taken by the defendants, but none was needed, for the facts alleged by the complainant, in his bill in reference to the land, removed all doubt, if any existed. The complainant alleged that he was "the legal and equitable owner of the following lands, situated in the second judicial district of Perry county and State of Mississippi, to wit: That part of the east half of section 32, situated south and west of a certain stream known as Bowie river, in township 5 north, and range 13 west, of said county and state." Having deraigned his title to the land, complainant further averred "that, for the fiscal year 1890, the said lands in question was, by H. M. McCallum, the tax collector and sheriff of the said Perry county, pretended to be sold for the taxes due thereon for said year, and deeded to T. J. Mixon and L. S. McCoy, said defendants, in March, 1891, for taxes as aforesaid, for the insignificant sum of 9 and 27/100 dollars, as more fully appears from a certified copy of said pretended conveyance filed herewith, marked 'Exhibit G, ' and prayed to be made and considered a part of this bill of complaint."

If there was any ambiguity in the description of the land, it sprang from the single fact of a failure to designate "Bowie" as a river. If the description had been of so much of the east half of the section as is west of Bowie river, it would have been a perfect one. We judicially know that there is a Bowie river in that section of the state in which the lands lie. The complainant avers, in effect, that this river intersects the east half of section 32, that his lands lie west of the river, that they were delinquent for the taxes of the year 1890, that they were sold by the tax collector for such taxes, bought by the appellants, and that the very deed sought to be canceled was executed by the collector for the purpose of conveying these lands to them. It is true the complainant says the lands were pretended to be sold, but this word pretended is but the usual form of characterizing an act the validity of which the complainant challenges by his bill. It does not suggest that the lands he claims were not the precise lands with reference to which action was had. On the contrary, the complainant insists that his lands were those as to which the proceedings were directed.

If there was ambiguity in the description of the land, and the complainant, as he might have done, had averred only that the defendants asserted some claim to the land which ought to be canceled, as a cloud upon his title, it would then have devolved upon the defendants to have offered parol proof ...