Overby v. Cavanaugh, 54335
| Decision Date | 27 July 1983 |
| Docket Number | No. 54335,54335 |
| Citation | 434 So.2d 1365 |
| Court | Mississippi Supreme Court |
| Parties | Clay B. OVERBY and Margaret M. Overby v. Eleanor Lynn Overby CAVANAUGH and James Norris Overby. |
Jerry T. Johnston, Johnston, Adams & Younger, Brandon, for appellants.
Jim Bullock, Shell, Buford, Bufkin, Callicutt & Perry, Jackson, for appellees.
Before BROOM, P.J., and ROY NOBLE LEE and BOWLING, JJ.
Tax deed land description: "18 1/2 A Mid E side of E 1/2 NE 1/2 27-4-4" is argued to be fatally defective in this title confirmation suit appealed from the Chancery Court of Rankin County, the Hon. Billy Bridges, chancellor. Complainant/appellant Clay B. Overby averred that the quoted land description is void and a cloud on his title. No other issue is presented, and both parties state that the land description issue is dispositive. 1
According to the bill filed by complainant Clay Overby against Eleanor Lynn Overby Cavanaugh and other appellees, complainant's deraignment of title appears to involve land descriptions similar to that set forth above in tax sales during the 1930's. However, as stated in the briefs and the chancellor's opinion, only the validity of the description which appears in the first sentence of the first paragraph of this opinion is in issue on this appeal. No testimony was presented by either litigant. The briefs refer to no other description as being in issue. In his opinion, the chancellor stated:
The fact that subject description is in the middle of the east side of a quarter section apparently creates the problem and contest at hand; but this Court still feels that a surveyor would have no problem locating said land, since he would only have to survey 18 1/2 acres out of said east side with a beginning point on the quarter section line marking the middle of said east half of the north-east quarter of said Section 27. Our Court has also held that other rules may be applied to make a description valid, such as referring to other descriptions or the same description in the chain of title, Wilson v. Harris, 256 So.2d 201 ( [Miss.] 1972).
There are several different land configurations or shapes which may be drawn from the subject description and thus the description is not valid, and reversal is required.
Wilson v. Clark, 278 So.2d 250 (Miss.1973), states that a tax deed, which is the present situation, "must contain a proper description ... ." Later on, Wilson states a tax deed to be valid must use "words necessary to identify the land" and that "intention" will not govern as would be the case in a deed between individuals.
According to Wilson, supra; DeLee v. Anderson, 216 Miss. 888, 63 So.2d 393 (1953), and other of our cases, a land description is sufficient if it enables a surveyor to locate boundaries by following the description. Here, several configurations can be made to result by following the controverted description, and obviously there was no testimony to show otherwise. Neither the appellees in their brief, nor the chancellor in his opinion or order, refer to any extrinsic evidence on any relevant tax roll which would enable a surveyor to carve out of any section or fraction thereof the other lands of other owners and thereby identify the lands in controversy.
Appellees' brief states:
To say that the description now before the Court is void and could convey nothing is to say that the land could not be located by a surveyor using the available records and current common information.
We are asked by the appellees to say that the subject land description is valid without any theory, or demonstration by any manner of means whereby the language of the description is sufficient to identify the land. Upon the narrow agreed issue as stated, we must hold that the naked description standing alone should not have been upheld.
The cases relied upon most strongly in appellees' brief were cases in which "extrinsic evidence" was presented so as to render the land descriptions meaningful and susceptible of being...
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...boundaries by following the description. See Trotter v. Gaddis & McLaurin, Inc. , 452 So.2d 453, 456 (Miss. 1984) ; Overby v. Cavanaugh , 434 So.2d 1365, 1366 (Miss. 1983). Moreover, a description may still be considered sufficient, though it contains inaccuracies, if the property could be ......
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Trotter v. Gaddis and McLaurin, Inc., 54214
...(1970). Land descriptions, to be sufficient, should enable a surveyor to locate boundaries by following the description. Overby v. Cavanaugh, 434 So.2d 1365 (Miss.1983). In the case sub judice, Gaddis & McLaurin, Inc. attempted to lease a given number of acres out of a larger tract of land.......
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