Summary
In Johnson v. Lake, 162 Miss. 227, 232, 139 So. 455, 456, 88 A.L.R. 262, it was held that "when a tax deed shows on its face that the sale was made on a day other than that regularly fixed by law, the burden of proof is on him who claims under the tax deed to show the proper order or orders, if any exist, by which the sale was postponed to the date shown upon the face of the tax deed."
Summary of this case from City of Biloxi v. LoweryOpinion
No. 29721.
February 1, 1932.
1. MUNICIPAL CORPORATIONS.
Tax sale by city tax collector on day other than that provided by law is void and ineffective.
2. MUNICIPAL CORPORATIONS.
Where municipal tax deed shows on face that sale was not made on day regularly fixed, party claiming thereunder has burden to show that sale was properly postponed (Code 1930, section 1578).
3. APPEAL AND ERROR.
Question involving validity of tax deed because of insufficient description cannot be reviewed, where maps introduced were not brought up.
APPEAL from chancery court of Washington county. HON. J.L. WILLIAMS, Chancellor.
B.B. Carmichael, of Greenville, for appellant.
In the case of Metcalfe v. Wise, 132 So. 102, Justice Griffith held that a tax sale made on the first Monday of April, 1926, by the city of Greenville, was void under the rule first announced in the Planters Gin Milling case, 103 So. 797, by reason of the erroneous date of sale.
The undisputed record shows that the city clerk of the city of Greenville wholly failed to make up, certify and file with the chancery clerk the tax record in the manner and form required by every municipality by chapter 307, Laws of 1920.
Section 7013 Hemingway's 1927 Code provides that an ordinance must be passed by the city authorities prescribing the terms and condition under which lands acquired at tax sale may be sold. No ordinance was passed in this case and Mr. Lake purchased the land from the city of Greenville at private sale.
Byrd v. Dickson, 120 So. 562.
It has been repeatedly held that the description found in the assessment roll and the tax deed must furnish a clue of identification of the land intended to be conveyed.
In the tax deed of April 2, 1923, the description of the land is incomplete, because it fails to recite that the land intended to have been conveyed was lot 9, block 2, of the subdivision of "block 5 and of lots 6 to 17, inclusive of block 6," but on the other hand the description fails to make mention of "block 6" at all and the appellee made no effort to apply the description on the land roll for the year 1922.
Although it may be possible to show to a moral certainty what the maker of an instrument intended, rather than what he had expressed parol evidence is not admissible. Extrinsic evidence is admissible to show to which of several subjects a description applicable to each was intended to apply, but not to bring a particular thing under a description not applicable to it.
Bowers v. Anderson, 52 Miss. 596.
J.A. Lake, Jr., and Wynn Hafter, all of Greenville, for appellee.
The lists of lands sold for taxes in the years 1923 and 1924 were introduced, and it was shown that the property involved here was included in those lists. With the introduction of this evidence, and with the introduction of certain evidence which will be hereinafter referred to, covering the appellee's contention that the appellee is now the owner of the property involved by virtue of adverse possession, the appellee, relying on section 1578 of the Mississippi Code of 1930, based his case.
The rule applied in the case of Metcalfe v. Wise, 132 So. 102, simply states that, where a sale is proven to have been made at the wrong date, then, that sale is invalid. However, the complainant, in making his proof, has wholly failed to show that a sale was not made at some other time than that designated for the regular sale of lands for the non-payment of taxes.
Section 32 of the Code of Ordinances, states that chapter 116 of the Mississippi Code of 1892 shall govern the powers of the municipality as to the sale of land for the non-payment of taxes. Section 3850 of the Mississippi Code of 1892, being a part of chapter 116 of that code, makes provision for the sale of lands which were not sold at the regular time. The defendant and appellee here properly relying on section 1578 of the 1930 Code, it therefore was necessary for the complainant and appellant here, in order to make out his case, to prove that this land was not sold in the proper manner at some time other than the regular time by virtue of section 3850 of the 1892 Code.
The complainant and appellant next relies upon the fact that the city clerk did not properly certify the tax list which covered these sales. It is submitted that section 3273 of the Mississippi Code of 1930, which provides in part, — "and no such conveyance shall be invalidated in any court except by proof that the land was not liable to sale for the taxes, or that the taxes for which the land was sold had been paid before sale or that the sale had been made at the wrong time or place" obviously eliminates this fact, as a ground for setting aside the tax sale here involved.
Section 3817 of the 1892 Code, and section 3273 of the 1930 Code, apply to and cover sales made by the city of Greenville.
The deeds involved here did contain a sufficient and definite enough reference to the land involved in this lawsuit; the presumption being that, by virtue of section 1578, the defendant and appellee has shown a good prima facie title, and the evidence introduced by the complainant and appellant as to the indefiniteness in the description of this property, as set out in the deeds upon which the defendant relies, is not sufficient.
The defendant and appellee has shown that he has established title by such possession as is required by section 2288 of the Mississippi Code of 1930.
Appellant filed his bill in the chancery court to cancel, as clouds on his title, an adverse claim of title held and asserted by appellee. The title or claim of title asserted by appellee is founded on two tax sales made by the tax collector of the city of Greenville. The first of these sales was made on the first Monday, the 2nd day of April, 1923, and the second on June 2, 1924. Neither of these sales occurred on the day regularly fixed by law for tax sales in the said city; the ordinances of the city at that time providing under its special charter for tax sales on the first Monday in March. See Planters' Gin Co. v. Greenville, 138 Miss. 876, 103 So. 796; Metcalfe v. Wise, 159 Miss. 54, 132 So. 102. It has long been the settled rule in this state that a tax sale made on a day other than that provided by law is void and of itself confers no title.
Appellee makes two defenses to the bill: First, that he had been in the actual occupancy of the land for three years after maturity of the last sale; and, second, that it was not shown by appellant that the sales were not held on a day or days to which, by a proper order of the municipal governing board, the said sales had been postponed.
On the first proposition of actual occupancy for the statutory period, a careful examination of the record discloses that there is not sufficient testimony to support the decree in behalf of appellee on that issue. The course of the argument in the briefs would indicate that the chancellor did not base his decree on that ground, but on the second ground; namely, that it was not shown that the sales were not on dates to which the said sales had been legally postponed by proper and valid orders. The question before us for decision is therefore this: When tax deeds are introduced and on their faces they show that the sales were made on days other than those regularly fixed by law, on whom does the burden of proof rest to show that the sales were, or were not, made on a date to which said sales were legally postponed by the proper order of the board of supervisors or of the municipal authorities, as the case may be?
It is insisted by appellee that under section 1578, Code 1930, in force at the time of these sales, and which enacts that tax deeds "shall be prima facie evidence that the assessment and sale of the land were legal and valid," the presumption is carried that the sales were made on a valid day, even though the date of sale shown on face of the deeds would indicate that the sales were made on an unauthorized day. This direct question seems not to have been decided in this state; or, if so, no such case has been cited to us, and in our own researches in our reports we have failed to find a decision to the exact point. But the authorities in other states, in construing similar statutes, appear to be without division upon the question, and they hold that, when the tax deed appears upon its face to be void, the prima face statute has no application in respect to the apparently void feature. 37 Cyc. 1464; 4 Cooley on Taxation (4 Ed.) 3033, 3034. We must hold therefore that, when a tax deed shows on its face that the sale was made on a day other than that regularly fixed by law, the burden of proof is on him who claims under the tax deed to show the proper order or orders, if any exist, by which the sale was postponed to the date shown upon the face of the tax deed. Appellee did not meet, nor undertake to meet, that burden in this case.
Appellant argues in his brief that, aside from all the other questions, the said tax deeds are void for want of a sufficient description of the property. We are not able to pass on this question, because of the fact that the maps which the record shows were used on the trial are not made a part of the transcript. In Hume v. Inglis, 154 Miss. 481, 486-489, 122 So. 535, we made a review of the rules of appellate procedure when essential maps and diagrams used on the trial are not made of record on appeal. We need not here repeat what was there carefully and amply stated on that subject.
Reversed and remanded.