Wheeler v. Lynch

• Decision Date: 18 December 1906
• Citation: 89 Miss. 157,42 So. 538
• Court: Mississippi Supreme Court
• Parties: ZIUS W. WHEELER v. DORSEY M. LYNCH ET AL

42 So. 538

89 Miss. 157

ZIUS W. WHEELER v. DORSEY M. LYNCH ET AL

Supreme Court of Mississippi

December 18, 1906

November 1906

FROM the chancery court of DeSoto County, HON. JULIAN C. WILSON Chancellor.

Wheeler the appellant, was complainant in the court below; Lynch and another, appellees, were defendants there. From a decree dismissing the bill complainant appealed to the supreme court.

Appellant filed his bill in chancery in July, 1906, claiming title to lands sold to him March 7, 1904, for the taxes of 1903. His tax deed, an exhibit to the bill, described the land as "situated in the county and assessed to Betty Lynch to-wit: West part, northwest 1/4, section 29, township I range 8, one hundred and ten (110) acres, more or less." The bill prayed for confirmation of the tax title and for cancellation of any claim to the land appellees might assert. Appellees demurred to the bill, claiming that there was a patent ambiguity in the description. The demurrer being sustained, appellant, by leave of court, amended his bill by showing that fifty acres of the quarter-section was owned by and assessed to one Dodson, who paid the taxes thereon for the year 1903, which was described as "Fifty acres the east part of the northwest 1/4 of section 29, township I, range 8, " and that said fifty acres, together with the land in his tax deed, made the total one hundred and sixty acres of land in the quarter-section; and made reference to the county assessment roll, whereon the fifty acres were assessed to Dodson; to Dodson's tax receipt for 1903, and to the list of lands sold for taxes of 1903. This list showed the sale to appellee of land assessed to Betty Lynch, described in the exact words of the tax deed description, with the exception that the words "more or less" were omitted. The amended bill alleged that the words "more or less" in the deed were surplusage; and that if thereby the description was made indefinite, the reference to the assessment roll cured any defect which might be claimed in the description. Appellee again demurred on the same ground, and in addition claimed that the documents referred to in the bill, being extraneous to the deed, could not be invoked in aid of the description.

The demurrer to the amended bill was sustained, and, appellant declining to amend further, the court below dismissed the suit in so far as it sought confirmation of the tax title, retaining it only to adjust the equities between the parties growing out of the payment of taxes by complainant.

Reversed and remanded.

Farley & Lauderdale, for appellant.

There is no patent ambiguity in the deed, for the land is described therein as the west part of a certain quarter-section, "one hundred and ten acres more or less, " and also as land in the county, assessed in 1903 to Betty Lynch. The wording of the deed anterior to the phrase "more or less" shows a definite and complete description, and the latter phrase does not disqualify such description. Bowers v. Chambers, 53 Miss. 259; McReady v. Lansdale, 58 Miss. 879; Enochs v. Miller, 60 Miss. 19; 20 Am. & Eng. Ency. Law (2d ed.), 874. In determining if patent ambiguity exists in description, the words "more or less" should not be construed, but be excluded as surplusage. 20 Pick. (Mass.), 62. In United States v. Fossat, 20 How. (U.S.), 413, the words, "one league more or less, " were held to mean one league, the three last words being treated as surplusage. In Tierney v. Brown, 65 Miss. 563, the court, in construing two official deeds wherein the one, a tax collector's deed, described the land as "about 225 acres, " and the other, the state auditor's, described the same land as "225 acres more or less, held that 225 acres were meant. In Herring v. Moses, 71 Miss. 620, a tax deed conveying the west part of a section "containing 300 acres, more or less, " was held to convey 300 acres taken in a strip of equal width off the west side of the section. The words "more or less" in land descriptions refer merely to small variance in any represented quantity, and their use is merely to restrain the representation to a reasonably small allowance for minute errors in surveys, or in variations in instruments, or as estimated by the parties. Hodges v. Deny, 86 Ala. 495; United States v. Fossat, supra, 15 Am. & Eng. Ency. Law (1st ed.), 718. Hence, from the face of the deed, without reference to other sources, the words "more or less" mean nothing, or, at the least, merely such modification of the one hundred and ten acres as might happen by reason of variation of magnetic needle, or from there not being fully one hundred and sixty acres in the quarter-section.

But to aid description, if necessary, reference may, under the wording of the deed, be made to outside documents or facts. The deed recites that the land is "situated in said county and assessed to Betty Lynch." Reference is thus made to the county assessment roll, authenticated copy of which is exhibit to the amended bill; and the assessment roll, showing the land assessed to Bettie Lynch, contains the same description of the land as is shown in the deed, except that the words "more or less" are omitted. But it is contended by appellee that the assessment roll cannot be looked to in aid of description, and, in support thereof Bowers v. Andrews, 52 Miss. 597, and Cogburn v. Hunt, 54 Miss. 675, are cited. But these cases were based upon sales made before the common law rule as to exclusion of parol testimony had been changed by the statute enacted in April, 1876, and at present incorporated in Code 1892, § 3776. Judge CHALMERS, in Cogburn v. Hunt, 56 Miss. 726, stated that if the sale had taken place under the subsequent enactment of 1876, the decision in the former case (54 Miss. 675) would...