Tierney v. Brown

• Decision Date: 12 November 1888
• Citation: 65 Miss. 563,5 So. 104
• Court: Mississippi Supreme Court
• Parties: ELLEN TIERNEY v. KING BROWN ET AL

5 So. 104

65 Miss. 563

ELLEN TIERNEY v. KING BROWN ET AL

Supreme Court of Mississippi

November 12, 1888

APPEAL from the Circuit Court of Warren County, HON. RALPH NORTH Judge.

This is an action of ejectment, brought, Sept. 26, 1887, by Ellen Tierney against King Brown, for the possession of a tract of land described in the plaintiff's declaration, as "the south part of section five, in township fourteen range four east, containing two hundred and twenty-five acres, more or less," and lying in Warren County of this State. Louisa C. Edwards was admitted as landlord to defend the action, and pleaded "not guilty, as to a part of the premises claimed by plaintiff in her declaration, to wit: the southeast quarter of section five, township fourteen, range four east, in said county."

At the trial the plaintiff first offered in evidence, properly authenticated, a list of the lands sold to the State, March 7, 1881, by the tax collector of Warren County, for the taxes due thereon for the year 1880; which list embraced a tract of land with the same description as that contained in the plaintiff's declaration. Next, the plaintiff introduced in evidence a deed made by the Auditor of Public Accounts dated January 18th, 1883, and purporting to convey to George M. Klein a certain tract of land, by the same description as that contained in the list of lands referred to. Then the plaintiff presented in evidence a deed, executed by the sheriff of Warren County, June 24th, 1887, purporting to convey to Ellen Tierney a tract of land, described as "south part of section five, township fourteen, range four, east, containing about two hundred and twenty-five acres; also part of S. E. 1/4 of Sec. 5, township 14, range 4, east, said land being in the County of Warren, State of Mississippi." This deed recites that the land therein referred to was sold by the sheriff, under an execution issued, May 28th, 1887, upon a judgment rendered on the 11th day of December, 1883, in favor of Ellen Tierney and against George M. Klein. The plaintiff also adduced in evidence the assessment roll of lands in Warren County for the year 1879 which shows an assessment of "S. part of Sec. 5, T. 14 range 4 E., 225 acres," and "P't of S.W. 1/4, Sec. 5, T. 14, range 4 E., 45 acres" to the "State of Mississippi," as owner; and which also shows an assessment of "P't of S.W. 1/4, Sec. 5, T. 14, range 4 E., 56 acres," to A. D. Sandford, as owner. This assessment roll also shows under the caption, "Remark," the following: "Unknown owners--purchased by Geo. M. Klein, January 18th, 1883." The last evidence introduced by the plaintiff was a part of the minutes of the Board of Supervisors of Warren County showing that, on the 13th of Oct., 1879, the "Board met pursuant to adjournment," and made an order reciting that, "The assessment rolls having been returned to the September term of this board, and action deferred until this term for examination and correction, and having been examined by the board at this term, and corrections and equalizations made, the said assessment rolls are now accepted," etc.

The bill of exceptions recites that, " The defendant then offered the following evidence:

"1st. The minutes of the board of supervisors in July, 1875, showing that said board met on July 5th, 1875, and continued in session till the 14th day of said month, and on the said 14th day approved the assessment roll of lands of said Warren County.

"2d. The list of lands returned by the State Auditor to the Chancery Clerk of Warren County, pursuant to the act of the legislature, entitled 'An Act to systematize the records of state tax lands, facilitate tax collections, and for other purpose,' approved March 5th, 1880, showing that said S. P't, Sec. 5, T. 14, R. 4 east, 225 acres, assessed as state lands on the roll of 1879, was omitted or stricken off under said Act.

"3d. The additional assessment of 1880, of the indefinitely described lands, on which this land does not appear.

"4th. The minutes of the board of supervisors on Monday, November 29th, 1880," showing the return of an additional assessment of land other than that here in controversy. And the bill of exceptions states that, "There is no other reference in any minutes of said board to said additional assessment of 1880."

The court, to whom the case had been submitted for trial, a jury having been waived, rendered a judgment for the defendants, "as to the said southeast quarter of section five, township fourteen, range four east." And thereupon the plaintiff appealed.

Judgment reversed and cause remanded.

Wade R. Young, for the appellant.

The plaintiff exhibits a title which is prima facie valid.

The defendant contends that the title is invalid because--

1st:--The land was not included in the additional assessment of 1880, of indefinitely described lands.

2d. The description was too vague and indefinite to operate as conveyance of title.

1. The Act of 1880 provides:

"And the Assessor of the County shall assess such lands at such valuation as he may deem just, and they shall be added to the assessment roll of the lands, if not already assessed, and for this assessment the Assessor shall be paid at the same rate as for the regular assessment."

It was argued for the defendant, and decided by the court, that in compliance with the requirement of this Act, a new and additional assessment was indispensable, and as the land did not appear on the additional roll of indefinitely described lands, and as the minutes of the board did not show that such additional assessment was corrected and approved, there was no valid assessment as a basis for the proceedings.

The vice of this argument consists in ignoring, or disregarding the letter and the spirit of the Act.

The letter of the Act does not make a new and additional assessment indispensable, but provides that the Assessor shall assess such lands at such valuation as he may deem just, and they shall be added to the assessment roll of the lands, "if not already assessed."

The Act was remedial, and it could not have been the intention of the law to require a new assessment of lands already assessed. If the land was not already validly assessed, it was made the duty of the Assessor to assess it at such valuation as he might deem just, and to add it to the assessment roll of lands.

If the land was already validly assessed, it was made the duty of the Collector to proceed to collect the taxes thereon.

The land was assessed on the roll of 1879, and the assessment was corrected and approved by the board.

If that assessment was valid, the land was in contemplation of law, already assessed, and it would have been unnecessary for the Assessor to assess it at such valuation as he might deem just, and to add it to the roll.

The land was assessed in compliance with the law, and the assessment was valid.

The Assessor finding the land already validly assessed, described and valued, made no additional assessment, except to insert the words "unknown owners" under the head of remarks.

The Collector, in obedience to the requirements of the Act, proceeded to collect the taxes, and sold the land to the state for the delinquent taxes of the year 1880.

If the title so conveyed was not valid, it was because the

Act of 1880 required an additional assessment of lands which were already validly assessed.

2. The Act of 1876, re-enacted in 1878, and embodied in Section 491 of the Code of 1880, makes ample provision for any uncertainty in the description of the land.

The description is, "south part of Sec. 5. T. 14, R. 4. E. 225 acres." The land could be easily located by reference to the titles. Dunlap v. Richardson, 63 Miss. 447.

The assessment roll of 1879, shows that the land in dispute embraces the S. E. qr., being the whole of that quarter and so much of the S.W. qr. as is not assessed to others.

Birchett & Gilland, for the appellees.

The Circuit Court was compelled to decide the case as if appellant had sued for land described as The South Part of Section 5, Township 14, Range 4 East, containing 225 acres.

That description being utterly insufficient to base any action on, the court necessarily rendered judgment for the defendant or appellee. Brown v. Guice, 46 Miss. 299; Cogburn v. Hunt, 54 Miss. 675.

It would be impossible to locate the 225 acres sued for.

They might include, all the S. E. 1/4 and part of the S.W. 1/4, or all the S.W. 1/4 and part of the S. E. 1/4, or parts of both S. E. 1/4 and ...