Pearce v. Perkins

• Decision Date: 19 December 1892
• Court: Mississippi Supreme Court
• Parties: W. C. PEARCE v. FLORA PERKINS ET AL

12 So. 205

70 Miss. 276

W. C. PEARCE v. FLORA PERKINS ET AL

Supreme Court of Mississippi

December 19, 1892

October 1892

FROM the chancery court of Monroe county, HON. BAXTER MCFARLAND Chancellor.

Pearce the appellant, filed this bill June 1, 1891, seeking confirmation of certain tax-titles. The bill sets out a number of purchases from the state of distinct tracts of lands, and, as to a part of the lands so purchased, he obtained a decree confirming his title. But, as to certain other tracts, the bill was dismissed, and complainant appeals. It is unnecessary further to add to the facts stated in the opinion.

Decree affirmed.

E. H Bristow, for appellant.

1. Appellant's title to the land in section 8 is good, because, (1) the assessment, levy and sale to the state, and the state's deed to appellant, of themselves, are valid; and (2), if not, the error is cured by proof aliunde of what land was sold. I admit that, if the deed itself must show definitely the land sold, the description is insufficient; but, every tax-deed made by the state includes and refers to not only the assessments and lists of land sold to the state, but the government surveys and maps. The same liberal principles must be applied as are applicable to execution sales, in which the essential things are the judgment, execution, levy and sheriff's deed. Virden v. Bowers, 55 Miss, 1. The most important element is the assessment. No failure to observe the statutory requirements vitiates a description on the assessment-roll. Code 1871, § 1676. In this case, the roll shows what the word "balance" means. We know from government surveys how many lots are in section 8, and, as certain of the lots are assessed by numbers, the "balance" must mean all the other lots in the section. In the same way we can identify the land on the lists and as sold by the state. The word "balance" is relative, and can be identified. If it were "part of section 8," it would be different, as "part" is an absolute term, incapable of a fixed meaning. See Brown v. Guice, 46 Miss. 299. In Bowers v. Andrews, 52 Miss. 596, the roll, when referred to, contained the same insufficient description, and could not aid in identifying the land sold, as it can and does in this case; and so in Dingey v. Paxton, 60 Miss. 1038. In Cogburn v. Hunt, 54 Miss. 675, the court held that the assessment and sales lists did not aid the description, thus implying that they could be looked to. In Selden v. Coffee, 55 Miss. 41, relied on by appellee, there was no attempt to cure the insufficient description by averment or reference.

2. But, if the description be insufficient, the three years' statute (Code 1871, § 1709) bars any attack. The curative force of the statute applies to all defects, and bars any kind of attack. Jones v. Brandon, 59 Miss. 585; Berry v. Gibson, 66 Ib., 515; Sigman v. Lundy, Ib., 522; Pipes v. Farrar, 64 Ib., 514; Jonas v. Flanniken, 69 Ib., 577; Nevins v. Baily, 62 Ib., 433; 1 Blackw. on Tax Titles, § 520; 2 Ib., §§ 925, 928; 1 W. & S., 175.

3. The assessment of 1877 was valid. There is nothing in the record to show affirmatively that the roll was not presented at the July term. But I submit that such a thing as the accidental sickness of an assessor, and his consequent absence, would not hopelessly vitiate an assessment beyond the power of the board to postpone the presentment and approval.

It has been decided that the approval may be postponed. Wolfe v. Murphy, 60 Miss. 1.

4. Granting the roll to be defective, the defects have been cured by the three years' possession. Code 1880, § 539; Nevins v. Baily, 62 Miss. 433. "Actual occupation" of wild land means nothing more than such exclusive holding as the land is susceptible of, and which is not interfered with by any other claimant. It may be actual, though not corporal. Davis v. Bowmar, 55 Miss. 671; Ford v. Wilson, 35 Ib., 490. See also 2 Blackw. on Tax Titles, § 914. Possession and occupation are convertible terms. McGee v. Holmes, 63 Miss. 50; Pipes v. Farrar, 64 Ib., 514; Lewis v. Siebels, 65 Ib., 252; 21 Ill. 178; 121 Ib., 455; 30 Iowa 242; 19 Cal. 688.

Sykes & Richardson and Clifton & Eckford, for appellees.

1. The roll of 1877 was not presented at the July term, and is therefore void. Stovall v. Connor, 58 Miss. 138; Harris v. Stockett, Ib., 825; Fanning v. Frenches, 60 Ib., 541; Wolfe v. Murphy, Ib., 1. Appellee denies that any actual possession has been shown in appellant.

2. The tax-deed to the land in section 8 is clearly void, for uncertainty of description. Bowers v. Andrews, 52 Miss. 596; Brown v. Guice, 46 Ib., 299; Dingey v. Paxton, 60 Ib., 1038; Cogburn v. Hunt, 54 Ib., 675; Selden v. Coffee, 55 Ib., 41. Section 1676, code 1871, does not aid the description, as it is patent. Cogburn v. Hunt, supra.

3. The proof failed to show that appellant had been in actual or adverse possession. The three years' statute (Code 1880, § 589) can therefore have no application. As to what constitutes possession, see Dickson v. Cook, 47 Miss. 220; Huntington v. Allen, 44 Ib., 654; Ellis v. Murray, 28 Ib., 129; Alexander v. Peck, 39 Ib., 737.

OPINION

COOPER, J.

The minutes of the board of supervisors show that a new assessment of the lands in the county for the year 1877 was ordered to be made under the provisions of the act of January 31, 1877 (Laws, p. 109); and they also affirmatively show that the roll made by the assessor was not returned to the board on the first Monday of July, 1877, as by that act was required.

At the August term the board, by an order on its minutes, recited that on account of sickness the assessor was not present with his roll, and directed notice to be given that "the matter of examining and correcting said rolls be postponed, and set for the meeting to be held on the first Monday of September next."

The September term began on Monday, the third day, and on the eighth day of that term an entry was made on the minutes that the roll was presented to the board by the assessor. Under no reasonable construction of these entries can it be assumed that the roll had been returned at the time required by law. The decisions of this court are numerous and uniform that such a defect of the proceedings to assess vitiates the roll, and that sales for taxes under an assessment of this character are void.

The evidence for the complainant fails to show such possession of the land, in sections 17 and 18, which were sold under the assessment of 1877, as to protect the tax-title under § 539 of the code. That section declares that "actual occupation for three years, after one year from the day of sale, of any land held under a conveyance by a tax-collector, in pursuance of a sale for taxes, shall bar any suit to recover such land, or assail such title because of any defect in the sale of such land for taxes, or in any precedent step to such sale."

The possession necessary to put in operation this statute, must be an actual occupation of at least a part of the land, and continuous for the time named. The chancellor rightly held that complainants were not entitled to any relief as to the lands in sections 17 and 18.

The other lands as to which relief was denied to complainants consists of a part of section 8, township 12, range 17. This land was sold to the state on the 1st day of March, 1875, for the taxes of 1874, and was afterwards conveyed by the auditor to the complainant. In the conveyance from the tax-collector to the state the land is described as "owner's name, C. Dowd, balance section 8, township 12, range 17;" and from the state to the complainant as "balance of section 8, township 12, range 17, west." The chancellor held these conveyances to be void, for uncertainty in the description of the subject-matter.

Counsel for appellant offered in evidence with the deed the assessment under which the sale was made on which the whole of section 8 (the same being a fractional section) was assessed, the assessment being as follows:

"Thomas R. Dansby, lot 1, section 8, township 12, range 17. Cornelius Dowd, lot 7, section 8, township 12, range 17. Cornelius Dowd, balance section 8, township 12, range 17."

Upon this evidence counsel argues that the assessment, the sale and conveyance to the state, and the conveyance from the state to complainant, are to be looked at as parts of one...