Opinion
No. 38531.
November 17, 1952.
1. Tax deeds — tax collector's list — clerk's deed.
The clerk's deed to land sold for taxes is evidence simply of the right of possession and that the period of redemption has expired, and it is the tax collector's list of lands sold which operates to transfer the tax sale title to the individual purchaser. Sees. 9935, 9936, Code 1942.
2. Tax deeds — description — assessed as the property of a named person.
When land has been assessed as a particular person's place or according to its name in the community, this is a sufficient clue to permit the use of parol testimony to clarify the description and make it more complete. Sees. 9773, 9775, Code 1942.
3. Assessments — description — clues — deeds in chain of title.
Where the assessment furnishes sufficient clues to aid in making the description certain, one admissible type of extrinsic evidence are deeds in the chain of title.
Headnotes as approved by Ethridge, J.
APPEAL from the chancery court of Pearl River County; LESTER CLARK, Chancellor.
Morse Morse, for appellant.
I. Description of the land on the assessment roll for the years 1936 and 1937, and on the tax collector's deed, and on the list of lands sold on the 20th day of September 1937, and for the delinquent taxes of 1936, is insufficient and void, which description on the assessment roll purports to be a metes and bounds description as shown in the assessment roll, to-wit:
"2A. In N 1/2 of Lot 2 Described as beg. at N E Corner of Blk 20 of Egertsville run N. across 3rd. St. 40 ft; to starting point; thence N. parallel with Roy St. 400 ft; thence W. parallel with 3rd. St. 214 feet; to E. side of Roy St; thence S. along E. side of Roy St. 400 feet; thence E. along N. side of 3rd St; 214 ft; to place of beginning (Known as A.J. Welch Lot. — Section 3, Township 7, Range 17."
And parol testimony under Sec. 9775, Code 1942, is not admissible to aid such void description or to formulate a description set up by inadmissible testimony. Nelson v. Abernathy, 74 Miss. 164, 21 So. 150; Cogburn v. Hunt, 54 Miss. 675; Bowers v. Andrews, 52 Miss. 596; Holmes v. Evans, 48 Miss. 247; Brown v. Guice, 46 Miss. 299; Price v. Moss, 58 So.2d 661; Delk v. Hubbard, 153 Miss. 869, 121 So. 845; Paden v. Gibbs, 88 Miss. 274, 40 So. 871; Smith v. Brothers, 86 Miss. 241, 38 So. 353; Carr v. Barton, 173 Miss. 662, 162 So. 172; Cassidy v. Hartman, 93 Miss. 94, 46 So. 536; Nixon v. Clevenger, 74 Miss. 67, 20 So. 148; Meyerkort v. Warrington, 19 So.2d 433; Town of Utica v. State, 166 Miss. 555, 148 So. 635; Gully v. Jackson International Co., 165 Miss. 103, 145 So. 905; Gulf S.I.R.R. Co. v. Harrison County, 192 Miss. 114, 4 So.2d 717; Chickasaw County v. Gulf, Mobile Ohio R. Co., 195 Miss. 754, 15 So.2d 348; Reed v. Heard, 97 Miss. 475, 53 So. 400; Brown v. Womack, 181 Miss. 66, 178 So. 783; Cuevas v. Cuevas, 145 Miss. 456, 110 So. 865; Ransom v. Young, 176 Miss. 194, 68 So. 473; McQueen v. Bush, 76 Miss. 283, 24 So. 196; Crawford v. McLaurin, 83 Miss. 265, 35 So. 209, 211, 949; Albritton v. Fairley, 116 Miss. 705, 77 So. 651; Dodds v. Marx, 63 Miss. 443; Wilson v. Wilson, 97 Miss. 423, 52 So. 353; Neal v. Shepard, 157 Miss. 730, 128 So. 69; Cox v. Richardson, 186 Miss. 756, 191 So. 99.
II. In describing land, the lines, measurement by metes and bounds and courses control description, as against any general description, and in connection therewith, such as the homestead place, "The Welch Lot," and any others of like kind found in the decisions of this Court. Sec. 9775, Code 1942; Mills v. Collinsville Methodist Church, 46 So.2d 110, on Sugg. of error, 46 So.2d 793; Doe v. King, 4 Miss. 125; Patterson v. Morgan, 161 Miss. 807, 138 So. 362.
III. Metes and bounds description which does not close is void. 9 C.J. (1st Ed.), Boundaries, Sec. 47b, p. 177, Closing the Lines; Doe v. King, 4 Miss. 125; Newman v. Foster, 4 Miss. 383; Patterson, et al. v. Morgan, 161 Miss. 807, 138 So. 362.
IV. The lower court erred in admitting evidence on the void description of the land herein shown on the assessment roll; and the court further erred in rendering a decree in which the description was changed, altered and reformed in every detail as compared to the void description on the assessment roll and in the tax collector's deed, which is contrary to the law set out in the opinions and decisions of this Court — holding that such description in the assessment and the tax deed cannot be changed, altered and reformed. Sec. 9775, Code 1942; Bower, et al. v. Chess Wymand Co., 83 Miss. 218, 35 So. 444; Cox v. Richardson, 186 Miss. 576, 91 So. 102; Neal v. Shepard, 157 Miss. 730, 128 So. 69; Pearce v. Perkins, 70 Miss. 276, 12 So. 205; Brown v. Womack, 181 Miss. 66, 178 So. 783; McQueen v. Bush, 73 Miss. 283, 24 So. 186; Carr v. Barton, 173 Miss. 662, 162 So. 172; Hatchett v. Thompson, 174 Miss. 502, 165 So. 110; Ransom v. Young, 176 Miss. 194, 168 So. 473; Albritton v. Fairley, 116 Miss. 705, 77 So. 651; Wilson v. Wilson, 97 Miss. 423, 52 So. 353; Reed v. Heard, 97 Miss. 743, 53 So. 400; Boone v. Dulion, 80 Miss. 584, 32 So. 1; Crawford v. McLaurin, 83 Miss. 265; Delk v. Hubbard, et al., 153 Miss. 869, 121 So. 845.
V. The attempted description of about 2 acres in the N 1/2 of Lot 2, Section 3, Township 7, Range 17 West, in Pearl River County, that was entered on the 1936 and 1937 assessment roll, by an attempted metes and bounds description was so indefinite and uncertain that it was not sufficient to put the owner, Frances Zeigler and her successors in title to the lands described in the complainant's suit, on notice that the said void and indefinite description was aimed at, or an attempt to assess taxes against said owner's land.
The assessment roll, the advertisement in the newspaper and the list of lands sold by the sheriff in September, 1937, including the said void description, was not sufficient to impart notice to the real owner to the land in complainant's suit. Secs. 868, 869, Code 1942; Pan American Life Ins. Co. v. Crymes, 169 Miss. 701, 153 So. 803; Simmons v. Hutchinson, 81 Miss. 361, 33 So. 21; Sack v. Gilmer Drygoods Co., 149 Miss. 296, 115 So. 339; Delk v. Hubbard, 153 Miss. 869, 121 So. 845; Acme Lbr. Co. v. Hoyt Bros. Co., 71 Miss. 106, 14 So. 464; Federal Land Bank v. Newsom, 175 Miss. 114, 161 So. 864, 166 So. 345; Sowell v. Rankin, 120 Miss. 458, 82 So. 317.
VI. The void deed made and executed by H.K. Rouse on September 21, 1939, at pages 76 and 77 of the record was held in secret and not placed of record in Pearl River County until January 20, 1947, the owner, Mrs. Zeigler and her vendees relied upon the law of this state and the controlling decisions of this Court as set out in Point I, Point II, Point IV, and Point V, all holding the description shown in the tax sale in this case was void, and the subsequent record of said void tax deed, approximately 8 years after issue, was also void and did not vest any right and title under said void tax deed, and such void deed would not have been constructive notice and is not now constructive notice. Secs. 868, 869, Code 1942; Pan American Life Ins. Co. v. Crymes, 169 Miss. 701, 153 So. 803; Simmons v. Hutchinson, 81 Miss. 361, 33 So. 21; Sack v. Gilmer Drygoods Co., 149 Miss. 296, 115 So. 339; Delk v. Hubbard, 153 Miss. 869, 121 So. 845; Acme Lbr. Co. v. Hoyt Bros. Co., 71 Miss. 106, 14 So. 864; Federal Land Bank v. Newsom, 175 Miss. 114, 161 So. 864, 166 So. 345; Sowell v. Rankin, 120 Miss. 458, 82 So. 317; Everett v. Williamson, 163 Miss. 848, 143 So. 690; Russell Investment Corp. v. Russell, 182 Miss. 385, 182 So. 102.
G.B. Keaton and H.H. Parker, for appellees.
It is the contention of the appellees that the name of a given piece of property, or the name by which it is known in any question of an irregular, or indefinite description, if there was such, that when traced back, will furnish a clue by which the property can be identified and the description made definite. Dowling v. Reba, 65 Miss. 259, 3 So. 354; Strauss v. McAllister, 5 So. 624; Martin v. Smith, 140 Miss. 168, 105 So. 494; Carr v. Barton, 173 Miss. 772, 162 So. 172; Jefferson v. Walker, 199 Miss. 705, 24 So.2d 343; Reed v. Herd, 97 Miss. 743, 53 So. 400-402; Standard Drug Co. v. Pierce, 111 Miss. 354, 71 So. 577; Albritton v. Fairley, 116 Miss. 705, 77 So. 651.
In the case of Freeman v. Adams, 207 Miss. 760, 43 So.2d 362, it was definitely held that the tax records and the deed to complainant's predecessor in title, were admissible in evidence and sufficient to identify the property. Jefferson v. Walker, 199 Miss. 705, 24 So.2d 343; Howard v. Wactor, 41 So.2d 259.
From an inspection of the assessment roll, found record page 115, as well as the list of lands sold for taxes, found record page 112, as well as the tax deed, found record pages 76 and also 117, it will be found that in the description of the land contained in all of these documents, the point of beginning is designated twice in the description given, that is, it is designated to start on and it is designated at the conclusion of the description, or to quit on; it gives it as the point of beginning, and goes back to it, naming it as the point of beginning as the concluding call in the metes and bounds description; the concluding or quitting place of beginning is just as important and just as much named as the place of beginning named as the first call, this definitely fixes it as 214 feet east of the East line of Roy Street. Now this is entitled to just as much weight as the erroneous point of beginning pointed out as the Northeast corner of Block 20 in the first point of beginning. These two calls are of equal rank and are just as important one as the other; one of them is a misnomer. The only question before the lower court and now before this Court is which controls, the last call or the quitting point of the description, or the first. The quitting point of beginning is supported by every other call in the description while the first is not supported but is shown to be an error but an error of no importance because the land can be located by taking the last call along with the true metes and bounds description on every other side of the plot of land involved, all of which goes to show and does definitely show that the land sold for taxes was a perfect rectangular shaped piece of land, lying immediately East of Roy Street and immediately North of Third Street, with the lines definitely north and south and definitely east and west, no variation whatever; they do not run at angles, but run definitely north and south and east and west, and all of which is undisputedly shown to be the A.J. Welch property and makes a perfect description when construed in the light of reason and the true calls of the instrument.
This case involves the sufficiency of the description of certain lands in an assessment and tax sale. The Chancery Court of Pearl River County upheld the validity of the description when aided by parol evidence as authorized by Miss. Code of 1942, Secs. 9773 and 9775. The former statute provides that a failure to observe the requirements in making up the land rolls shall not vitiate any assessment "if the land be so described as to be identified; and it shall be sufficient identification of land to describe it as the land of . . . (person owning or claiming it), occupied by . . .; or that part of (section or other known division designating it) owned or claimed by . . .; or the lot on which . . . resides; or the lot occupied by . . .; or by the name by which it may be known; or by any description which will furnish a sure guide for the ascertainment by parol evidence of the particular land intended."
Sec. 9775 deals with the description of lands in assessment rolls and in part states: ". . . and 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 1909 A.J. Welsh became the owner of a lot of about two acres of land in Pearl River County in the Town of Nicholson, but which was then the Town of Egertsville in Hancock County. He had a home on or immediately adjacent to this land and lived there from five to ten years. On February 28, 1919, he conveyed the same by warranty deed to W.C. and Ruth Thames. On May 14, 1921, the Thames conveyed the same land to Hadai Francis Zigler, who apparently was one and the same as Mrs. Frances Zigler, under this description:
"Beginning at the N.E. Corner of Block 21 of Egertsville, and run North across 3rd, street 40 feet to a stake, for a starting point, thence North Parallel with Roy Street 400 feet, thence West Parallel with 3rd street 214 feet to the East side of Roy Street, thence south along East side of Roy Street 400 feet to a stake, thence East along North side of 3rd street 214 feet to place of beginning, and lying wholely (sic) in lot 2, section 3, Township 7, South, Range 17 West, situated in Pearl River County, Mississippi."
Mrs. Zigler retained title to the land until January 2, 1930, when she conveyed it by the same description to Lewis P. Keller.
The assessment rolls for Pearl River County for the year 1936 reflected an assessment of this property to Mrs. Frances Zigler under the following description:
"2A. in N 1/2 of Lot 2 described as beg. at NE Cor. of Blk. 20 of Egertsville run N. across 3rd. st. 40 ft; to starting point; thence N. parallel with Roy St. 400 ft; thence W. parallel with 3rd. st. 214 ft; to E. side of Roy St; thence S. along E. side of Roy St. 400 ft; thence E. along N. side of 3rd. st. 214 ft. to place of beginning. (known as A.J. Welsh Lot). Section 3, Township 7, Range 17."
It will be noted that this description erroneously gave the starting point as the northeast corner of Block 20, which is one block immediately to the west of the correct starting point, the northeast corner of Block 21. It also refers to the property as "known as A.J. Welsh lot", and states that it consists of two acres in the north one-half of Lot 2 of the correct section.
The Sheriff and Tax Collector of Pearl River County undertook to sell this property for delinquent ad valorem taxes on September 20, 1937, to Janie Bennett, under whom appellees and defendants below claim. The chancery clerk's tax deed of September 21, 1939, based on this tax sale, described the lands as follows:
"2 A in N 1/2 of Lot 2 described as beginning at NE cor of Blk 20 of Plat of Eggertsville and run N across 3rd St. 40 ft to starting point; thence N parallel with Ray St. 400 ft; thence W parallel with 3rd St to E side of Ray St; thence S along E side of Ray St 400 ft; thence E along N side of 3rd St 214 ft to place of beginning, Sec. 3, Twp. 7, Range 17W."
This description perpetuated the error as to the starting point at the northeast corner of Block 20 instead of Block 21. It also omitted the words "214 feet" in designating the north line of the property "thence W. parallel with 3rd St. to E side of Roy St.", and omitted the reference "known as A.J. Welsh lot."
The tax collector's certified list of lands sold described the property in substantially the same manner as it was described in the assessment rolls quoted above, except that it stated "known as H.J. Welsh lot".
Appellees, Amos Bennett and others, defendants below, are the heirs of the vendee in that 1937 tax sale, Janie Bennett. Appellants, complainants below, deraigning their title through the owner at the time of the tax sale, Keller, filed this suit against appellees in the Chancery Court of Pearl River County seeking to cancel the tax sale of September 20, 1937, and tax deed to Janie Bennett, on the ground that the descriptions used were void. The trial court heard testimony and adjudicated that there was a sufficient description on the land assessment roll to permit parol evidence to identify the correct description of the property sold, under Code Secs. 9773 and 9775; that the tax sale was, therefore, valid and conveyed to Janie Bennett the lands first above described; and that it therefore confirmed title in appellees as her heirs, and denied appellant the requested relief. We affirm that decision.
The map of Egertsville reflects that Block 7 is immediately north of Block 20, and that these two lots are bounded on the east by Roy Street and on the West by Mable Street, running north and south. Immediately south of Block 7 and north of Block 20 is Third Street, which runs east and west between these two blocks. To the east of Block 20 is Block 21, north of which, running east and west, is Third Street, and west of which Block 21 is Roy Street. There is no block platted north of Block 21 and east of Block 7, although this unplatted area, which was the A.J. Welsh property, seems to have been in the north half of Lot 2, of Section 3.
The chancery clerk's deed to Janie Bennett omits the reference to "known as A.J. Welsh lot." (Hn 1) However, the tax collector's list of lands sold operates to transfer the title to the individual purchaser. The clerk's deed is simply evidence of right of possession and that the redemption period has expired. Miss. Code 1942, Secs. 9935, 9936; Seward v. Dogan, 198 Miss. 419, 440, 21 So.2d 292 (1945); Slush v. Patterson, 201 Miss. 113, 28 So.2d 738, 29 So.2d 311 (1946); Darby v. Hunt, 209 Miss. 738, 48 So.2d 359 (1950).
The issue is whether the description in the tax assessment rolls is sufficient to be applied to the correctly described tract of land by the aid of extrinsic evidence based upon clues furnished in the assessment. We think that the assessment furnishes adequate clues to warrant extrinsic evidence under the statutes to identify the property.
The description contains a patent ambiguity. Considered as an entirety it shows that the true location of the property is east of Roy Street. It states that after going 400 feet north of the starting point, the surveyor will proceed "thence west parallel with 3rd Street 214 feet to East side of Roy Street." It is evident that this is the terminal, west side of the property because the description then continues south "along east side of Roy Street 400 feet". Hence the location of the land under this description is east of Roy Street. It further reflects that the land is bounded on the south by Third Street. The southern description reflects that it is 214 feet along the north side of Third Street, and that the line begins on the east side of Roy Street. It is evident that the land, therefore, is bounded on the west by Roy Street and on the South by Third Street. None of the land goes into or crosses Roy Street on the West or Third Street on the South. In every instance in the description, except as to the initial starting point, the surveyor must run west 214 feet to the east side of Roy Street, and thence south along the east side of Roy Street 400 feet, and then run east along the north side of Third Street 214 feet to the place of beginning. These facts in the description must be considered along with the error in the statement of the starting point. Considering them as such, they manifestly reflect that the error in the description is in the reference to beginning at the northeast corner of Block 20, instead of Block 21. These factors indicate that with every other element of the description considered, the starting point should have been at the northeast corner of Block 21, and that this is the only error in the description.
However, we do not intend to indicate that these facts alone suffice as clues to warrant other evidence to aid in the location of the land. But they must be considered along with a more definite, stronger circumstance. In the assessment, after the metes and bounds, it is said that the property is "known as A.J. Welsh lot". Code Sec. 9773, quoted above, expressly provides that "it shall be sufficient identification of land to describe it as the land of . . . (the person owning or claiming it) . . . or by the name by which it may be known . . ." Bennett, Jackson, and Mitchell, all long time residents of Nicholson, testified that they knew A.J. Welch; that the two acres correctly identified was always called the Welsh place in that community; that the land was known as the A.J. Welsh place in that community; and that Welsh lived on the property for four to ten years, and that Welsh never owned any other property in Nicholson other than this particular piece. Two surveyors testified that Third Street had never actually been laid out on the ground, and that they found the remains of a house located partly on the land which was designated by the plat as Third Street.
(Hn 2) This evidence was ample to warrant the chancery court in finding the correct description of the land, from the reference in the assessment to "known as A.J. Welsh lot". Illustrative cases approving the use of parol testimony to identify the property assessed as a particular person's place or according to its name in the community are: Martin v. Smith, 140 Miss. 168, 105 So. 494 (1925); Dowling v. Reber, 65 Miss. 259, 3 So. 354 (1888); Strauss v. McAllister, 5 So. 624 (Miss. 1889).
(Hn 3) Where the assessment furnishes sufficient clues to aid in making certain the description, one admissible type of extrinsic evidence are deeds in the chain of title, Jefferson v. Walker, 199 Miss. 705, 24 So.2d 343 (1946), suggestion of error overruled, 199 Miss. 705, 26 So.2d 239; Freeman v. Adams, 207 Miss. 760, 43 So.2d 362 (1949); Loper v. Hinds Land Company, 58 So.2d 88 (Miss. 1952), suggestion of error overruled, 59 So.2d 326. Supplementing the previously mentioned facts and clues in the description, appellees introduced deeds to A.J. Welsh of these lands; the deed from Welsh to Thames; a deed from Thames to Mrs. Zigler; and one from Mrs. Zigler to Keller, all of which correctly described the property. In addition, plats of the particular property by two surveyors were introduced, along with the map of the town of Egertsville; and also certified copy of the list of lands sold by the tax collector, reflecting the sale to Janie Bennett of this property, and photostatic copy of chancery clerk's tax deed after expiration of the redemption period.
There was enough in the description on the assessment rolls to be applied to the particular tract of land by the aid of extrinsic evidence, as authorized by Code Secs. 9773 and 9775.
Affirmed.
McGehee, C.J., and Alexander, Lee, and Kyle, JJ., concur.