Nelson v. Abernathy

• Decision Date: 21 December 1896
• Citation: 21 So. 150,74 Miss. 164
• Court: Mississippi Supreme Court
• Parties: RICHARD M. NELSON v. J. W. ABERNATHY

21 So. 150

74 Miss. 164

RICHARD M. NELSON v. J. W. ABERNATHY

Supreme Court of Mississippi

December 21, 1896

October 1896

FROM the chancery court of the second district of Chickasaw county HON. BAXTER McFARLAND, Chancellor.

The appellant filed his bill in equity for the cancellation of certain tax deeds as clouds upon his title, alleging as to thirty-seven acres of the land that the description by which it was sold and conveyed by the collector was void for uncertainty, and that, as to a certain other tract, the collector did not sell in the manner required by law, in that he offered the same for the taxes due thereon in forty-acre lots, and, finding that the first forty acres offered did not bring the amount of taxes due, then offered another forty-acre lot, separate and distinct from the first, and then another, separate and distinct from the second and first, and so on until one hundred and sixty acres were offered, and then offered the whole, failing to add the second forty to the first when offered and the third to the first and second, and so on, and offer the whole; and that said lands were not designated by the tax collector when the same were offered for sale, as, by law, should have been done.

The defendant demurred to the bill, and, the court having sustained the demurrer and dismissed the bill, this appeal was prosecuted. The opinion sufficiently indicates the grounds of demurrer.

Decree reversed and cause remanded.

Stovall & Williams, for the appellant.

1. The action of the tax collector in offering each succeeding forty-acre lot after the first one, separate and distinct from those previously offered, was contrary to law. Code 1892, § 3813; Hodge v. Wilson, 12 Smed. & M 498; Vasser v. George, 47 Miss. 713; Griffin v Ellis, 63 Ib., 348.

2. The collector's failure to designate the parcels when offered avoids the sale, and the same is not cured by the provisions of the statute to the effect that "no error in conducting the sale shall invalidate it" (§ 3813, code 1892), and that the collector's "conveyance shah not 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." Code 1892, § 3817; Hodge v. Wilson, supra; Virden v Bowers, 55 Miss. 1; Griffin v. Mixon, 38 Ib., 424; Griffin v. Ellis, 63 Ib., 348; McLeod v. Burkhalter, 57 Ib., 65.

3. The collector's deed to the land described as "37 acres in N. 1/2 Sec. 1, T. 13, R. 4, " was void, and the bill certainly should not have been dismissed as to that. Sims v. Warren, 67 Miss. 278; Pearce v. Perkins, 70 Ib., 276.

Thomas J. Buchanan, on the same side.

1. The sale for taxes was invalid, because (1) the land was not sold in the manner required by law, each forty-acre tract being offered separately, and (2) no one of the forty-acre tracts was properly designated when offered for sale by the collector. Hodge v. Wilson, 12 Smed. & M., 505.

2. The appellee cannot rely on § 3813, code 1892, as curing the above fatal defects. It is true that section provides that no error in conducting the sale shall invalidate the same. But that section cannot be construed alone. It must be interpreted along with other provisions of the law governing sales for taxes, and cannot validate a sale void for a total failure to comply with the law. This question has been already adjudged. Griffin v. Ellis, 63 Miss. 351.

3. The description, "37 1/2 acres in Sec. 1, T. 13, R. 4, " expresses a patent ambiguity, and, as to that, the deed certainly should have been canceled as void.

Lacey & Stockett, for the appellees.

The case of Griffin v. Ellis, 63 Miss. 348, relied on by appellants, has no application to the present controversy. It was decided with reference to the law as it appeared in § 521, code 1880, which provided merely that "neither a failure to advertise nor error in an advertisement should invalidate a sale."

Section 3813, code 1892, under which the validity of the sale in this case must be determined, is much broader. It contains these additional words: "Nor error in conducting the sale shall invalidate." This change in the law was within the constitutional power of the legislature, which was subject to no restrictions in the matter of tax sales.

2. There is no provision in § 3813, code 1892, as there was in § 521, code 1880, that the collector, on failing to realize the amount due on the first forty-acre subdivision, should "add" another such subdivision, but only that he should "offer" another one. The word "add" cannot properly be interpolated in the present statute. The case of Hodge v. Wilson, 12 Smed. & M., 498, is not in point in view of the changes in the statute.

Argued orally by T. J. Buchanan, for appellee.

OPINION

WHITFIELD, J.

The description, "37 acres in the N. 1/2 of Sec. 1, T. 13 R. 4, " was void for uncertainty. Sims v. Warren, 67 Miss. 278, 7 So. 226; Pearce v. Perkins, 70 Miss. 276, 12 So. 205. As to the other lands, it is distinctly averred in the bill, and admitted by the demurrer, both that the sheriff offered first one forty-acre tract, and then another, disconnected from it, and so on, and then the whole of that tract, and did not add the second forty-acre tract to the first, and the third to the first two, and so on, and that, in offering each forty-acre tract, he failed entirely to designate or describe each such lot in any way whatever. In Hodge v. Wilson , 12 S. & M. 498, all the judges agreed that this last fact (the failure to designate and describe the tract offered) made the sale void. Section 3813 of the code of 1892, though not containing the word "add, " appearing in § 521 of the code of 1880, is substantially identical with it; and under the one, as the other, the sheriff should add the first forty-acre lot to the second, and so on, so far as the manner of...