Webb v. Mobile & Ohio Railroad Co.

• Decision Date: 02 June 1913
• Docket Number: 16,162
• Citation: 62 So. 168,105 Miss. 175
• Parties: J. H. WEBB v. MOBILE & OHIO RAILROAD COMPANY
• Court: Mississippi Supreme Court

62 So. 168

105 Miss. 175

J. H. WEBB v. MOBILE & OHIO RAILROAD COMPANY

No. 16,162

Supreme Court of Mississippi

June 2, 1913

APPEAL from the chancery court of Tishomingo county, HON. J. Q ROBINS, Chancellor.

Suit by the Mobile & Ohio Railroad Company against J. H. Webb. From a decree for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

George B. Power, for appellant.

The chancellor seems to have narrowed this case down to just one issue, to wit: Whether it was competent, by parol proof, to cure a purely clerical error in the tax collector's deed.

He decided this question adversely to the appellant and declined to hear any testimony offered by appellant on that point, or rather excluded such testimony as was offered and, the appellant being unable to travel without his tax deed, of course, went out of court and appellee took a decree.

Was the chancellor correct in his ruling? In the light of all of the authorities we have been able to find, we think be was not.

The first case we find in Mississippi in which this question was considered was as far back as 29th Miss., where we find the court holding that "The deed in controversy bore date of April, 1827, and the defendant offered evidence to show that the sale was made on February 12, 1827. The court said 'The first question arising under this objection is whether it was competent to show that the deed was executed on a different date from that stated in it on which it was acknowledged. It is clear that such evidence was competent." McComb v. Gilkey, 29 Miss. 149 citing 3d Starke Evidence, 4th Am. Ed. 1846.

It will be noted that in the case at bar the deed in controversy bears date of March 4, 1906, and that it appears to have been acknowledged March 4, 1907, the contention of appellant being that the deed was, in fact, executed on the date of the acknowledgment and that the writing of "1906" in dating the deed was merely a clerical error; the transcript does not show what evidence was offered by appellant to prove this, but the special bill of exceptions does show that evidence was offered and excluded; it would appear from the record, the answer to the writ of certiorari, that no oral testimony was taken, there being no memorandum of evidence noted by the chancellor; in order that there may be no doubt about the proposition, the chancellor enters his decree to the effect that "oral evidence is not admissible to explain the deed" and there's an end of it.

But this court has repeatedly decided otherwise, for, in addition to the case above cited, we find another case, not officially reported, but appearing in 25 So., that this court has held "Testimony of a tax collector and his deputy that land was sold for taxes and a deed executed on a certain day and that the date inserted in the deed was a mistake is admissible." Hinson v. Forsdick, 25 So. 353.

"Where land is sold for taxes on the day prescribed by law for such sales, the title of the purchaser is not affected by the fact that the deed was executed on a subsequent day and dated on the day of its execution; and a recital in the deed that the sale was made on the day of the date of the deed does not preclude the party claiming title thereunder from showing aliunde that the sale was made at the proper time. "Brigins v. Chandler, 60 Miss. 862.

The case of French v. McAndrew, 61 Miss. 187, is cited in the case just referred to, but in the French case there was neither admission nor effort to prove a clerical error so it is not in point.

In the case of Bower v. Chess & Wymond, 83 Miss. 218, the court distinguishes the question there involved from that in the case of Brigins v. Chandler; in the Bower case there appears to have been a recital in the deed that the sale was made in 1897 for the taxes of 1897 and the court held that the deed was void and that it was not competent to show by parol proof that the land was sold for the taxes of a year different from the year stated therein. At first blush, it would seem that this case is against appellant's contention, but when we find the court in the Bower case upholding the decision of the court in the Brigins case where it was held that it is competent to show by parol proof the true date of the deed, we find that the court announced there just what appellant is contending for and that is the right to prove that the true date of the deed was March 4, 1907, and not March 4, 1906; with that fact established, the tax collector's deed would have vested in appellant a good title to the property. So far as we have been able to find, the cases above cited are the only Mississippi cases bearing directly on the question involved one way or the other.

Going outside of our own state, we find an abundance of authority to sustain appellant's position, to wit:

"A deed may be shown to have been executed on a day different from its date." 20 Cent. Dig. Evidence, No. 1858, and cases there cited.

"It is very clear that it is competent to show that a deed or bond was executed on a different date from that stated in it." Miller v. Hampton, 37 Ala. 342, citing McComb v. Gilkey, 29 Miss. 146.

"Parol evidence is admissible to prove that a deed was executed on a different day from its date without any violation of the rule that parol evidence is inadmissible to vary or contradict the terms of a written instrument." Howell v. Rye, 35 Ark. 470, citing 1 Greenleaf Ev., 285.

"Neither is this rule infringed by the introduction of parol evidence to contradict the recital of the date of a deed." 1 Greenl. on Ev., sec. 285.

"Parol evidence is admissible to contradict the date of a deed . . . the date of an instrument not being essential to its operation." Blake v. Fash, 44 Ill. 302.

"A different date from that stated in the deed may be proved because the date of a deed is not material." 28 Ky. 137.

"A clerical error in the date of an instrument may be amended by parol evidence." 12 La. Ann. 142; 70 Pa. St. 387; 4 A. 198.

"The real time of the execution of a deed may be shown by parol testimony by either party. It would be of the most dangerous consequence to assert that the dates of deeds are conclusive; the greatest frauds might thus be committed." Geiss v. Odenheimer, 2 Am. Dec. 407.

"The date is not part of the deed and . . . proof may be made that the execution took place on a day different from the date inserted in the deed." McDowell v. Chambers, 47 Am. Dec. 539.

"The law presumes that an instrument was executed the day it bears date but parol testimony is admissible to show that it was, in fact, executed on a different day." 13 Ill. 133.

"Whenever the time of the execution of any writing, however solemn, becomes material, it may be proved by parol, not only to supply an omission but in opposition to a date expressed." 20 N.Y. 331, 75 Am. Dec. 408.

"Where a deed is registered on an acknowledgment made after the time it purports to bear date, parol proof is admissible to show when the deed was in fact executed." 3 Tenn. 431.

In the light of these authorities, we submit, therefore, that appellant should have been permitted to prove the date of the deed and thereby establish it as a perfectly good deed.

It is alleged in the bill that the description in the deed is vague and indefinite; no proof whatever is offered; in fact, the chancellor seems to have shut off the introduction of testimony when appellant offered to introduce his evidence regarding the date of the deed.

The deed is presumed in law to be good and to contain a good description, and the complainant, attacking the description because of vagueness and uncertainty, the allegations of the bill in this respect being denied, is called upon to prove the allegations; no proof is offered.

Code of Mississippi 1906, section 4285, provides that parol testimony shall always be admissible to apply a description of land on the assessment roll or in a conveyance for taxes where such testimony will show what land was assessed and sold and there is enough in the description on the roll or conveyance to be applied to a particular tract of land by the aid of such testimony.

In the face of this statutory provision, surely a deed is not to be thrown out simply because a bill of complaint alleges that it is vague and indefinite.

J. M. Boone, for appellee.

As to the point, as to whether or not the said deed is void on its face, the chancery court based its decree upon the authority Bower v. Chess, etc., Co., 83 Miss. 218. That case is on all fours with the case at bar, and the opinion in this Bower case reviews the other cases in Mississippi on this subject, and holds clearly that not only is this deed void on its face but that it cannot be corrected by parol proof; and while we concede that for some purposes the date of a deed can be corrected, they however in this case distinctly decide that it is not competent to show that...