Reed v. Heard

• Decision Date: 31 October 1910
• Docket Number: 14,344
• Citation: 97 Miss. 743,53 So. 400
• Court: Mississippi Supreme Court
• Parties: JOHN A. REED v. JAMES F. HEARD

53 So. 400

97 Miss. 743

JOHN A. REED v. JAMES F. HEARD

No. 14,344

Supreme Court of Mississippi

October 31, 1910

FROM the circuit court of, second district, Tallahatchie county HON. SAMUEL C. COOK, Judge.

Reed appellant, was plaintiff in the court below; Heard, appellee was defendant there. fro a judgment in favor of the defendant the plaintiff appealed to the supreme court. The opinion of the court states the facts of the case.

Decree reversed and cause remanded.

Broome & Woods, for appellant.

An insufficient description of lands can be aided by extrinsic evidence where the assessment roll furnishes the clue, which followed by the aid of such evidence, will lead to the land intended. The only constitutional requirement, so far as identification is required, requisite to valid taxation of land, is that there be some way of identifying it. Code 1906, § 4285. Mixon v. Clevenger, 74 Miss. 67; Illinois, etc., R. Co. v. LeBlanc, 74 Miss. 650.

The land sold at tax sale on June 2, 1902, was land which had escaped taxation, and was so sold in accordance with a previous order of the board of supervisors, regularly made and entered upon its minutes under the provisions of Code 1892, § 3850.

On June 2, 1902, the same day on which the land was sold at tax sale, the board of supervisors met at Charleston, and the last order that day entered on its minutes declared the result of the election held under the act of 1902, fixing the other or new county site at Sumner. The legal presumption is that the order of the board was passed after the tax sale, or the tax sale was had prior to the entering of the said order by the board.

The record in this case further shows that it was not until June 4, 1902, that quarters for the courthouse at Sumner were located or selected by the board. The record shows affirmatively that the sale took place even before the result of the election was declared, and before the selection and location of the courthouse at Sumner had been fixed and determined upon by order of the board. But should it be determined, for the sake of argument, that such is not affirmatively shown, it would yet avail the appellee nothing, for the reason that the law wisely presumes tax sales valid. This being true, as a necessary sequence, the burden of showing the contrary devolves upon the appellee and this burden he has failed to meet.

At the time this sale was made, the result of the election fixing the other county site at Sumner had not been declared; no courthouse had been located; no offices designated; no records of any kind secured or in existence for putting into effect and operation the machinery of the second judicial district, the place for the filing of the lists of lands sold as well as of the deed of the tax collector, was legally at Charleston, in the first district. But as a matter of fact, it can not be said in which district it was filled, and such being true, the court will presume that the same were filed in the proper district. If it should be held that the deed ought to have been filed in the second district, it will be presumed, in the absence of evidence to the contrary that it was so filed. And this presumption will be strengthened by the recital on the deed, which reads: "Filed, John T. Neely, clerk." The said John T. Neely was at that time clerk of the chancery court, Tallahatchie county, which included what are now the first and second districts of said county; and it will be presumed that he did his duty by filing in the proper district. The tax collector's deed raises the presumption of the proper filing of the deed in the office of the chancery clerk, within the time fixed by law. And this presumption the appellee has failed to overcome.

Dinkins, Caldwell & Ward, for appellee.

Appellant claims title through a tax sale made June 2, 1902. The sale was made by virtue of an order of the board of supervisors passed at the May term, 1902.

It will be observed that the order of the board, in general terms, directs the sheriff and tax collector to sell all lands delinquent for the nonpayment of taxes for the year 1901, heretofore not sold, without specifying what lands are delinquent and were not sold at the regular time. This order instead of designating what lands were delinquent and liable to such sale, in sweeping terms ordered the sheriff and tax collector to sell "all lands delinquent for the taxes of 1901," and leaving to the tax collector power to designate such lands as he may deem delinquent, and were not sold at the regular time.

This order of the board was made in accordance with section 4 of chapter 67, Laws 1902, and does not direct the sheriff to sell this or any other particular land, the sale is therefore void and no title vested in appellant by virtue of this sale.

The sale made by the sheriff and tax collector of the land in controversy is void, because it was made at the wrong place. The board of supervisors had no authority to order the sale made at Charleston. On February 15, 1902, Laws 1902, chapter 135, took effect, and was in force from that time. Under this chapter the county of Tallahatchie became divided into two court districts, and the order of the board directing the sheriff to sell the land was made at its May, 1902, meeting, and after the above laws had gone into effect; hence the sale should have been made in the second district of said county. Laws 1902, § 3, provides that sales of lands made by the sheriff under execution and otherwise in the discharge of his official duties, shall be made as follows: "Such lands as lie in the first district, he shall sell at Charleston, and such lands as lie in the second district, he shall. sell the same at the door of the county courthouse, at the county site to be established hereafter."

Neither the board of supervisors nor the tax collector has any legal right to fix the place of sale of lands for taxes. The statute fixes the place of sale, and a sale made at a place other than as so fixed, shall be void. The land in controversy is situated in the second district of Tallahatchie county, and should have been sold at the county site established in said district. The tax deed of the appellant is void for uncertainty of description, and cannot be aided by reference to the assessment roll.

If this court should hold that the ambiguity in appellant's deed is a latent one, and parol testimony be admissible to apply a description of the land on the assessment roll, or in the tax deed, we contend that the testimony here fails to identify the land assessed or the charge upon it. Unless a valid assessment is shown, it is useless to try to show what land was sold, since a valid assessment is a prerequisite to a valid sale.

It is essential to the validity of a tax deed that it be dealt with as required by law. A strict compliance with the statute with reference to the tax deed in question was necessary to vest title to the land in controversy in appellant. Adams v. Mills, 71 Miss. 150; Sintes v. Barber, 78 Miss. 385.

Section 79 of the constitution of the state of Mississippi, guarantees to every owner of lands or person interested therein, the right of redemption from sales of same for non-payment of taxes. And see Code 1892, § 3823.

Laws 1892, chapter 135, which divides the county of Tallahatchie into two court districts, and which was approved on February 15, 1892, and became effective on that date, provides that the circuit and chancery clerks shall keep offices in both the first and second districts of said county.

The evidence clearly shows that the chancery clerk did not comply with the requirements of section 5 of the act above cited with reference to the tax deed through which appellant claims title to the land in controversy. The deed was not filed at the county seat after the location of the county site at that place, and was not kept in the office of the chancery clerk for two years or any part of that time as the law requires.

It is argued by counsel for appellant that, inasmuch as the sale took place at Charleston, in the first district, the deed and list of lands sold should have been filed at that place. But under the provisions of section 5, Laws of 1902, chapter 135, it becomes the imperative duty of the chancery clerk to file all deeds, deeds of trust, and other conveyances, relating to property situated in the second district, at his office in said district. The land in controversy is situated in the second district, and persons interested would naturally apply to the chancery clerk in said district to ascertain if their lands had been sold for taxes. The requirements that conveyances should be deposited and remain on file in the office of the chancery clerk of the county in which the land is situated, was manifestly for the benefit of the owner of the land, who, by law, is pointed to the place where he should apply for the purpose of ascertaining whether or not his land has been sold for taxes and for the purpose of redeeming the same.

OPINION

MAYES, C. J.

John A Reed brought an ejectment suit against J. F. Heard to recover possession of forty acres of land, located in Tallahatchie county, and described as the W. 1/2 of N.W. 1/4, section 24, township 25, range 2 W., east of the bayou. The declaration alleges that the land sought to be recovered is all the land in the W. 1/2 of the above quarter section situated east of the bayou. The title of Reed depends upon the validity of a tax sale made by the tax collector on June 2, 1902, for the delinquent tax of 1901. The land in question was assessed in the year 1900 on the regular land roll, and this roll was made up and approved as required by law and used by the sheriff at the time of the sale. A part of this land, containing forty acres, was owned by...