Jefferson v. Walker

24 So. 2d 343, 199 Miss. 705, 1946 Miss. LEXIS 241

• Court: Mississippi Supreme Court
• Decided: January 14, 1946
• Docket: 35955; 35955
• Status: Published

Opinions

On June 1, 1931, the Tax Collector of Marion County sold to the State of Mississippi, for taxes thereon in default for 1930, certain lands in said county described on the assessment rolls as "E 1/2 SW 1/4 and NW 1/4 SW 1/4, less 6A, Section 2, Township 2, Range 18." The lands were assessed to one Alex Jefferson, now deceased, intestate, and were not redeemed from the sale.

The state issued a forfeited tax land patent to W.E. Walker on October 3, 1939, and on June 5, 1943, Walker executed to the California Company an oil, gas and mineral lease. The case before us is a suit filed by Walker and the California Company, as complainants, in the Chancery Court of Marion County seeking the confirmation of the tax title to the above described one hundred and fourteen acres of land. The defendants were the State of Mississippi, the heirs-at-law of said Alex Jefferson, deceased, and "all other persons having or claiming any legal or equitable interest in the lands in suit." The suit was brought under Chapter 309, Laws of 1940, Sections 1315 to 1322, inclusive, and Section 1314, all of the Code of 1942.

The state filed its formal answer, but the Jefferson heirs contested the suit, and filed an extensive answer in defense, which may be epitomized as a claim that the title of complainants is void. It is contended to be void because of an asserted patent ambiguity in the description of the land on the assessment roll and on the tax collector's list of lands sold to the state; because the tax collector failed to designate by accurate description the particular land he offered for sale, and struck off to the state; and since the title was void, complainants did not acquire title to any of the lands in suit under the three-year actual occupation statute, Section 716, Code 1942; and, in fact did not so occupy the land, and because Walker obtained his title by actual fraud on the state and defendants.

The case was heard by the chancery court on the pleadings and proof and a decree was rendered, holding therein that Walker went into possession of the lands described as the "East half (E 1/2) of the Southwest Quarter (SW 1/4) of Section 2, Township 2 North, Range 18 West of St. Stephens Meridian, subject to an oil, gas and mineral lease thereon, and held by the complainant, the California Company," after obtaining a patent thereto on October 30, 1939, and had "visible, distinct, actual, notorious, continuous, and exclusive possession of said land for more than three years prior to the date of the filing of the suit." However, the final decree also adjudicated that the Northwest Quarter (NW 1/4) of Southwest Quarter (SW 1/4) less six acres is indefinite as to description, and the tax sale thereof to the state was void because of such uncertainty, and consequently the state's patent to Walker and his oil, gas and mineral lease thereon to the California Company, were void as to said portion of the lands in suit. The decree specifically adjudged that Walker met all requirements of the law in his application for the patent, which was lawfully issued for a fair consideration, and no fraud was perpetrated. Title to the East Half of the Southwest Quarter was confirmed in complainants, but was cancelled as to the Northwest Quarter of the Southwest Quarter, less six acres.

The Jefferson heirs, defendants below, appealed from that part of the decree confirming title in complainants to the East Half of Southwest Quarter; and Walker and the California Company, complainants below, cross-appealed from that portion of said decree cancelling their title to the Northwest Quarter of the Southwest Quarter, less six acres.

The appellants, the Jefferson heirs, cite the cases of Bowers v. Andrews, 52 Miss. 596, and Smith v. Brothers, 86 Miss. 241, 38 So. 353, 354. The latter case contained this announcement by the Court: "The deed must stand or fall by itself. The assessment roll cannot aid the description in the deed. The doctrine of Bowers v. Andrews is still the law, as a matter of course, notwithstanding section 3817 and like sections of the Code of 1892. The fact that if the assessment roll furnishes some clew, which, if followed up by parol proof, would identify the land as described on the assessment roll, does not at all affect the other proposition announced in Bowers v. Andrews — that a description in a tax deed will be void if the ambiguity therein is patent." Therefore, appellants insist that the tax sale was void because the assessment description was not definite enough to identify the lands, and that the excepted six acres cannot, from the description itself, be allocated to a separate tract of the entire one hundred and fourteen acres any better than it can be to two of the separate tracts, or all of them, and that, therefore, the entire tax sale is void. The chancellor held that the six acre exception applied only to the last subdivision of the entire tract, and we think he was right. We do not see that Carr v. Barton et al., 173 Miss. 662,162 So. 172, interferes with the conclusion we have reached in this case. There the description was "north one-half of the northwest one-fourth, less one third acre to Mrs. Carr." In that case, this Court, referring to McQueen v. Bush, 76 Miss. 283, 24 So. 196, said a land description reading "`90 by 225 feet on the west side of Warrenton road, assessed to John Parkhurst, in section 34, township 16 N., range 3 E., in Warren county, [Mississippi],' conveyed no title, since the name of a person to whom land is assessed cannot be considered in aid of the description required, it not being descriptive of the land and furnishing no clue which, if followed, would identify the tract."

The record of the case at bar presents differences between it and Carr v. Barton. Here, every assessment in Section 2 was offered in evidence, and the assessment roll showed that the entire East Half of the Southwest Quarter of said section was assessed to Alex Jefferson, and no part of it assessed to anyone else. It also showed that the Northwest Quarter of the Southwest Quarter, less six acres, was assessed to him, and the other six acres were assessed to True Light School, and no part of said subdivision was assessed to anyone else. In support of this assessment to the True Light School District a chain of record title showed a deed from Henry Jefferson, father of Alex Jefferson, conveyed to the latter the East Half of SW 1/4 and the Northwest Quarter of Southwest Quarter of Section Two, Township Two, North, Range 18 West, "except a strip of land 66 yards wide to contain six acres of equal width cut off the North side of the NW 1/4 of SW 1/4, Section Two, Township Two, North, Range 18, West." Henry Jefferson conveyed, by identical description, to Olive Jefferson, a "strip of land sixty-six yards wide to contain six acres of equal width cut off of the North side of the NW 1/4 of SW 1/4 of Section 2 North, Township 18 West." She conveyed this six acres, by the same description, to Thornhill and Wilkes, who conveyed it to the Trustees of the True Light School, to whom it was assessed when the land of Alex Jefferson's estate were sold to the state for delinquent taxes in 1931. It will thus be seen that the tax conveyance to the state contained a clue, which, traced through the assessment roles and the deeds of conveyances, ultimately led to a definite description of the excepted six acres. No such proof was made in the Carr v. Barton case.

Appellants objected to the introduction of the assessment roll and the deeds into the evidence, relying upon Bowers v. Andrews and Smith v. Brothers, supra, contending the ambiguity was patent and could not be eliminated by extrinsic evidence, and that no reference is made to any of these deeds on the assessment roll, and, hence, by the authority of Carr v. Barton, nothing appeared in the assessment to furnish a clue by which to identify the land. The statutes in aid of descriptions on the assessment roll at the time the land in suit was assessed and sold to the state on June 1, 1931, for 1930 taxes, were Sections 3149 and 3151, Code 1930, now sections 9773 and 9775, Code 1942. By Section 3151, Code 1930, Section 9775, Code 1942, it is provided 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."

We held in Reed v. Heard, 97 Miss. 743, 53 So. 400, 402, that parol testimony would not be permitted "to supply a description where a totally void description appears on the assessment roll or tax deed; but such testimony may always be resorted to, whether the ambiguity is patent or latent, 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." Furthermore, the opinion in the Reed v. Heard case concluded as follows: "The case of Smith v. Brothers is overruled, in so far as it conflicts with this decision."

The decision in the case of Reed v. Heard also disposed of Bowers v. Andrews, supra, by stating that it "is not the law of this state as to what shall constitute a sufficient description of land in an assessment, and has not been the law of this state since the adoption of section 491, Code 1880, which became section 3776, Code 1892, and section 4285, Code 1906. The above sections [of the Code] were adopted for the very purpose of abolishing the rule laid down in Bowers v. Andrews." Section 4285, Code 1906, became Section 3151, Code 1930, and is now Section 9775, Code 1942.

We held in Standard Drug Company v. Pierce, 111 Miss. 354, 71 So. 577, that a tax deed describing land as "`south 1/2 of north 1/2, lot 5, block 113, Kamper Whinnery No. 2,' Forrest county, Miss." was sufficient to make competent the assessment roll and parole testimony identifying the land as being in a certain city, and to identify the land assessed. See also Dodds v. Marx,63 Miss. 443. In the case of Albritton v. Fairley, 116 Miss. 705, 77 So. 651, we said: "we think that the assessment and tax deed furnish the clue or reasonably definite starting point, which, when followed by the aid of other testimony, conducts certainly to the land intended, and oral testimony and documentary proof may be introduced for this purpose." There are other cases to the same effect as the ones cited here, but suffice it to say that in view of the statutes and authorities discussed, supra, in our opinion, the chancellor was correct in confirming title of appellees to the East Half of the Southwest Quarter, but incorrect in cancelling their title as to the Northwest Quarter of the Southwest Quarter, less six acres, of Section 21, Township 2 N., Range 18 W., of Marion County.

The appellants also argue that the tax sale was void because the tax collector failed to designate by accurate description the particular land to be offered for sale, and struck off to the state. They say it was impossible to offer any particularly designated forty acre subdivision in view of the claimed patent ambiguity. We have disposed of the patent ambiguity above, and appellants offered no proof on the point. We do not think there is any merit in the contention.

Next it is argued by appellants that appellees did not acquire title to any of the land in suit under the three-year actual occupation statute, Section 716, Code 1942, to the effect that three years actual occupation under a tax title, after two years from the date of the tax sale of the land, bars suit. It is contended that the proof of Walker's occupation of the land was wholly insufficient to meet the requirements of the statute; and appellants cite decisions of this Court holding that statutes of limitation, except the ten year statute, do not run in favor of the holder of a tax deed void on its face. We have above held this tax deed was not void on its face. The proof as to occupation was sharply conflicting and the chancellor specifically held in favor of appellees on this conflicting testimony, and we will not disturb his holding thereon, since we cannot say it is manifestly wrong, or against the overwhelming weight of the testimony.

The fourth and last alleged error argued by appellants is that appellees were not entitled to a decree quieting and confirming their tax title to the extent granted them, or at all; (1) because the tax sale was void; and (2) because Walker obtained his patent by actual fraud on the state and them.

This suit as already stated, was filed under a comparatively recent statute, Chapter 309, Laws of 1940, becoming Section 1315 to 1322, Code of 1942. Section 3 of the Act, now Section 1317 of the 1942 Code, provides that "Upon the hearing of such cases it shall be the duty of the chancery court to enter a decree validating and perfecting the title of said land from the state of Mississippi, unless it shall appear to the court and the court shall find as a fact that the state has not acquired title to said land by virtue of said tax sale, or that the title to the said land involved in the suit was divested out of state of Mississippi without payment of purchase price or by reason of actual fraud on the part of the patentee, or his representatives," etc. Appellants charge that the fraud consisted of deliberate misrepresentation by Walker of the value of the one hundred and fourteen acres involved, for which he paid $114, and the improvements thereon. The valuation of the land, of course, was determinable as of the date of the patent, 1939, and not as of the date of the trial.

On this phase of the controversy there was also sharply conflicting testimony. It is argued that the consideration was grossly inadequate, which cannot be allowed, citing Slay v. Lowery, 152 Miss. 356, 119 So. 819, and State v. Harper et al.,195 Miss. 580, 15 So.2d 680, 16 So.2d 29, as to Walker's alleged fraud. As to the California Company, appellants concede it was not guilty of fraud itself but say it had notice of Walker's fraud when it bought its lease and is bound by it. That is true, as we held in State ex rel. McCullen, Land Commissioner, et al. v. Adams, 185 Miss. 606, 188 So. 551, provided Walker was guilty of actual fraud under the statute. On the conflicting evidence offered by the opposing sides in this controversy, the chancellor held "that in making said application for the Patent, W.E. Walker met all the requirements of law in his application to purchase said land, and that all the requirements of law were met in the issuance of said Patent, and that the Patent was issued for a fair consideration; that no fraud was perpetrated upon the State of Mississippi by the said W.E. Walker, Patentee, or by anyone whatsoever in reference to said application and Patent." It does not appear to us that the chancellor was manifestly wrong as to his findings of fact, or that such finding was against the great overwhelming weight of the evidence, and so we do not disagree therewith. We have already held that the assessment, tax deed, and patent were not void, by what we have said, supra.

The case will, therefore, be affirmed on direct appeal. But since we consider the chancellor committed error by cancelling the title of cross appellants to Northwest Quarter of Southwest Quarter, Section 2, Township 2 North, Range 18 West, of Marion County, Mississippi, less 6 acres, we are constrained to reverse the case on cross-appeal, which we do. A decree will be entered here, accordingly, also confirming the title of W.E. Walker to said Northwest Quarter of Southwest Quarter, less six acres of above Section, Township and Range, subject to his oil, gas and mineral lease to the California Company.

Affirmed on direct appeal. Reversed on cross-appeal and decree here for cross-appellants.