Sims v. Warren

• Decision Date: 10 February 1890
• Citation: 7 So. 226,67 Miss. 278
• Court: Mississippi Supreme Court
• Parties: R. P. W. SIMS ET AL. v. N. B. WARREN

7 So. 226

67 Miss. 278

R. P. W. SIMS ET AL. v. N. B. WARREN

Supreme Court of Mississippi

February 10, 1890

FROM the chancery court of Itawamba county, HON. BAXTER McFARLAND Chancellor.

Appellee claiming under a tax collector's deed which conveyed to him "80 acres of the S. E. 1/4, Sec. 10, T. 8, R. 8, in Itawamba county," filed his bill in this case to confirm the tax title, alleging therein that said deed conveyed to him all the N. 1/2 of the S. E. 1/4 of said section, this being the land intended by the description in the deed.

The main controversy is as to whether the assessment of the land is void for uncertainty. The sale for taxes was made on the first Monday of March, 1881, for the delinquent taxes of 1880. The assessment, therefore, under which the sale occurred was that of 1879, and this quarter section is assessed on the roll for that year as follows:--

Name of

Division of section.

Section.

Town-

Range.

Value

Total

owner.

ship.

per acre.

valuation.

W. A.

Stephens

40 a. S. E. 1/4

10

8

8

2.50

100

120 a. S. E. 1/4

10

8

8

1.00

120

The bill of complaint, after setting out the assessment and purchase of the aforesaid deed, alleged that the taxes on the S. 1/2 of the S. E. 1/4 of said section were paid for 1880 by the owners thereof, and that the N. 1/2 of the S. E. 1/4 of the said section was the land on which the taxes were delinquent, and to which the sale was intended to apply. The appellants were made parties to the bill, and interposed a demurrer which was overruled. Whereupon they answered averring that the assessment was void for uncertainty, and the sale for taxes conferred no title.

One Morris testified that he was the owner of the S.W. 1/4 of S E. 1/4 of said section, and paid the taxes on said land for that year. Another witness, Cummings, testified that he was the owner in 1880, of the S. E. 1/4 of S.E. 1/4 of said section, and that he paid the taxes thereon for that year. Both these witnesses exhibited their tax receipts, each of which shows the payment of the taxes for 1880 upon "40 acres of the S. E. 1/4 section 10, T. 8, R. 8." They also testified that appellants owned, and were in possession in 1880, of the N. 1/2 of the said S. E. 1/4.

The decree of the court was in favor of the complainant, confirming his tax title, and from this decree the defendants appeal.

Reversed and remanded.

Clifton & Eckford and Brame & Alexander, for the appellants.

The deed presents a patent ambiguity. Whether the description is good or bad is to be determined in the first instance, from the face of the deed and the assessment roll. Then, if extrinsic evidence is admissible at all, there is no limit to the means that may be used to identify. Bowers v. Andrews, 52 Miss. 596.

We are not called on to discuss whether under the evidence, the complainant has identified the tracts which Morris and Cummings intended to pay on, and inferentially to judge as to what parcel the tax collector intended to sell. There is nothing on the face of the deed or the assessment roll that furnishes a guide to conduct us to the tract really sold. The only certain thing on the roll is the description of the quarter section. The description in the deed is, "80 a. of the S. E. 1/4." What 80 acres is meant? Can we find from the roll? There are only two assessments in that quarter section, the one assessing 40 acres to W. A. Stephens, and the other 120 acres in blank. If we assume that this 80 acres is a part of the 120 acres assessed in blank, we would still have to know what 120 acres was thus separately assessed. There is nothing in its description to show.

We would next look to find if the 40 acres comprising the rest of the quarter section are identified in any way; but we find that the description of this is as uncertain as that of the 120 acres, except that the name of the supposed owner is mentioned. But even if it were permissible to take the name of "Stephens" as a clew, we find that Stephens is a myth, and no one by that name owns any of the land in the southeast quarter. Practically we have the whole quarter section assessed in blank.

Even if the description was curable, the evidence wholly fails to identify the 80 acres sold. Neither Morris nor Cummings can show what they paid on. Merely knowing what their deeds called for, or what they owned, does not identify what was actually paid on. Their tax receipts are as uncertain as the description in the roll or the deed.

The power of sale does not depend on the purpose of the owner. Dodds v. Marx, 63 Miss. 443. Mere intention cannot make facts. We look to facts to make certain the intention, and not the intention to make certain the facts; otherwise there is an end to all patent ambiguities.

Surely whether the deed or assessment is certain or uncertain in its description cannot depend on a mere mental process. Suppose these witnesses should swear that the land they intended to pay on was that which included the most valuable land in the quarter section. Who could deny this intention? How could they be convicted of perjury? The description would be uncertain, movable and shifting anywhere over the 160 acre tract, until Morris and Cummings should refresh their memory, and tell what was in their minds when they paid their taxes. See Brame v. Moore, [MS. op.].

Even under the act of 1878, relied on, this description cannot stand without more to identify the assessment than the section, township and range. There could in most cases be no definite ascertainment, and we doubt if a forfeiture under such an assessment would be due process of law.

The W. A. Stephens tract is assessed at $ 2.50 per acre, while the rest of the quarter section is assessed at $ 1. An examination of the amount of taxes paid by Cummings will show that he paid as much state taxes as was due on the 120 acres separately assessed, whereas, if he intended to pay on the W. A. Stephens tract, the amount paid does not correspond with the amount due on it. This illustrates the impossibility of identifying either the lands paid on or the land sold under this assessment.

Newnan Cayce, for appellee.

It is immaterial whether land is assessed to the owner, to unknown, or in blank. No failure to observe any statutory requirement as to the manner of assessing land will vitiate the assessment if it is described so that by aid of parol evidence it can be identified. Any description that will furnish a sure guide for its ascertainment is sufficient. Code 1880, § 490; Acts 1878, 34.

This land was assessed in 1879, and the assessment must be construed under the provisions of the revenue act of 1878. Among other provisions of this act is that no failure to observe any of the requirements of the statute in reference to describing land shall affect the assessment or sale, if the section, township and range on which the land is situated is properly entered upon the roll, and it may be shown by parol testimony to what particular subdivision an assessment or sale was intended to apply. In this case, not only the section, township and range are correctly given, but the particular quarter section, and, if the part of the quarter section which was forfeited can be shown by parol, then the very case is presented which the...