Opinion
No. 33042.
February 14, 1938.
1. EVIDENCE.
In suit to cancel tax title acquired from the state by patent, where assessment roll and list of lands struck off to the state described land of taxpayer who owned half of certain section as certain number of acres in such section, parol evidence was inadmissible to show that taxpayer's land was assessed and struck off, notwithstanding statute authorized admission of parol evidence to apply description on assessment roll or tax conveyance where there is enough on roll or conveyance to be applied to particular tract, by aid of such evidence (Code 1930, section 3151).
2. EVIDENCE.
Under statute authorizing admission of parol evidence to apply description of land on assessment roll or tax conveyance where there is enough on roll or conveyance to be applied to particular tract by aid of such evidence, assessment roll must furnish clue which, when followed by aid of parol evidence, conducts certainly to land intended, and clue must be furnished and appear on list of lands struck off, and cannot be supplied merely by name of owner (Code 1930, section 3151).
3. EVIDENCE.
Under statute authorizing admission of parol evidence to apply description in tax deed when it contains a patent ambiguity there is enough on roll or conveyance to be applied to particular tract by aid of such evidence, assessment roll cannot aid description in tax deed when it contains a patent ambiguity. (Code 1930, section 3151).
4. TAXATION.
In suit to cancel tax title to land acquired from the state by patent, evidence supported decree awarding plaintiff rents for part of the years during which defendant has possession and setting off defendant's improvements against rents for the remaining years, in view of statutes governing defendant's right to compensation for improvements and proof of value thereof (Code 1930, section 1474, 1475).
5. TAXATION.
Under statute governing right of recovery for improvements made in good faith, where taxpayer notified patentee from the state, to which land had been struck off for taxes, that patentee had no title because of insufficiency of description in assessment roll and list of lands struck off, patentee made further improvements at his peril, and could not recover therefor on cancellation of his title (Code 1930, section 1474).
APPEAL from the chancery court of Sharkey county. HON J.L. WILLIAMS, Chancellor.
Percy Bell, of Greenville, for appellants.
It would appear that the main question to be considered by the court is whether or not the sale to the State was a valid one. The patent from the State is in proper order and described the land as the North Half (N 1/2) of the North Half (N 1/2) of Section 9 (Nine), Township 12 (Twelve), Range 7 (Seven) West by proper governmental description of the subdivisions.
If Miss Womack had executed a deed conveying to Mr. Brown 315 acres in Section Nine there would have been no difficulty whatever in proving that she only owned the North Half (N 1/2) of that section and it contained 315 acres and that her deed conveyed the North Half of the Section. The sale to the State was a conveyance to the State by the Tax Collector, acting for her practically, who conveyed to the State the 315 acres which she owned in that Section and which could be only the North Half of said Section. There were no other irregularities in the entire matter except the question of description.
The statute on the question of description and assessment reads as follows: Section 3151, Mississippi Code of 1930. Description of land. — "In assessing land, a description of it as a part of a designated tract or division, shall be held to embrace such part as is the subject of separate ownership, as one tract or division, whether owned by one or several jointly; and when part of a designated tract or division shall be sold for taxes, the sale shall pass the title of such part as was the subject of such separate ownership when it was assessed; and the sale of a specified number of acres of a tract containing more, or a specified portion of a tract, shall pass an undivided interest in the whole tract equal to the proportion which the number of acres or portion sold bears to the whole tract; and when part of a known tract or division of land is assessed by a description which identifies it, any other part of it which is assessed but not so identified, shall be held to embrace all of such tract or division not included in the part identified; 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."
Our courts long ago, through Judge Campbell, laid down the rule as to parol testimony in 35 So. 211, "The roll must furnish the clue, which, when followed by the aid of parol testimony, conducts certainty to the land intended. It is admissible only to apply the description on the roll, which must give the start and suggest the course, which, being followed, will point out the land intended to be assessed."
In the instant case we submit that the roll certainly gives the start. It tells who is the owner of the land, in what section, township and range it is located and the number of acres. This certainly can start anybody and the surveyor surveying the lands of Miss Womack in this Section found them to be the 315 acres sold and that it was the North Half of Section 9, Township 12, Range 7 West. The roll must furnish the clue and we submit that in the instant case the roll does furnish the clue.
We submit that there is no reported case on all fours with the instant case. In Reed v. Heard, 53 So. 400, the reasoning we submit is decisive of this case. In that case the deed conveyed forty acres in the West Half of the Northwest Quarter. Parol evidence and the assessment roll showed that Mr. Buford owned and was assessed with forty acres in the West Half of the Northwest Quarter lying west of the Bayou and it held that as there were only eighty acres in the west half of the northwest quarter and forty acres were assessed to Buford the remaining acreage could be located by parol testimony. This is the nearest case that we can find to our own.
Standard Drug Co. v. Pierce, 71 So. 577; Austin v. Sullivan, 100 So. 275.
If appellant's position as to the validity of the land title is not sustained we submit that, having entered upon the land in good faith and put his improvements thereon, he is entitled to compensation for improvements and that if his tax title is held invalid that the case should be referred to a master, or the court can hear evidence, as to the value of his improvements for which he should have judgment and a lien. This position seems to us to be absolutely without doubt or question.
Clements Clements, of Rolling Fork, for appellee.
The assessment in question is indefinite and void for uncertainty of description, therefore, the sale by the tax collector was void.
Yandell v. Pugh, 53 Miss. 303; Nelson v. Abernathy, 74 Miss. 167; Dingy v. Paxton, 60 Miss. 1049; Pearce v. Perkins, 70 Miss. 281; Bowers v. Andrews, 52 Miss. 596; Smith v. Brothers, 86 Miss. 242; Dodds v. Marks, 63 Miss. 443; McQueen v. Bush, 76 Miss. 288; Crawford v. McLaurin, 83 Miss. 274; Carr v. Barton, 173 Miss. 662, 162 So. 172; Ransom v. Young, 168 So. 473.
The description as shown on assessment roll shows a patent ambiguity, therefore extrinsic or parol testimony in aid of it is incompetent and inadmissible.
The description of the land as assessed and sold in this case does not comply with due process of law.
The lower court's decree on the law and facts is correct.
Parol testimony is admissible only to apply the description on the roll, which must give the start and suggest the course, which, being followed, will point out the land intended to be assessed.
Dodds v. Marks, 63 Miss. 443; McQueen v. Bush, 76 Miss. 288.
Where the ambiguity is patent parol evidence is inadmissible.
Bowers v. Andrews, 52 Miss. 603; Crawford v. McLaurin, 83 Miss. 274.
An insufficient description of land on the assessment roll cannot be aided by extrinsic evidence, unless the roll itself furnish the clue, which, followed by the aid of such evidence will lead to the land intended.
Carr v. Barton, 173 Miss. 662, 162 So. 172; Ransom v. Young, 168 So. 473.
If this description in the assessment is a patent ambiguity then clearly, under the above authorities, the extrinsic evidence offered by the appellant was incompetent and the lower court was right in sustaining the objection thereto.
The appellant certainly is not entitled to charge the appellee for the value of her own timber that went into the improvements on the property, and there has been no effort on the part of the appellant to show what he put into the construction of the dwelling house or tenant houses, other than the timber that came off the property involved in this case.
On behalf of Charlotte Womack, the appellee, the court below sustained her bill against F.B. Brown, the appellant, canceling his title to certain lands acquired by him from the state by patent; the title of the state thereto being based on the sheriff and tax collector's sale of such land for unpaid taxes.
The appellee was the owner of the north half of section 9, township 12, range 7 west, in the county of Sharkey, state of Mississippi. The lands were sold to the state in August, 1931, by the sheriff and tax collector of Sharkey county.
The following description appears on the list of lands sold to the state for delinquent taxes by the sheriff and tax collector:
"To whom assessed When sold
Charlotte Womack August 3rd, 1931
Description of land Sec. Tp. Range Number of Acres
in 9 12 7 315"
The assessment roll contained the same description.
The following order was entered on the record of the chancery clerk of the county, "Sale of within described land made void by order of R.D. Moore, Land Commissioner, by approval of Attorney-General, . . . This 1st day of January, 1936."
The appellant, Brown, acquired from the state the north half of the north half of said section 9 by a patent duly issued by the proper authority, and undertook to uphold, by parol evidence, the title of the state by showing that this section was assessed as follows on the 1930 assessment roll:
"Emma Lakye. Southeast Quarter of the Southeast Quarter. 40 acres.
"George T. Harris. North half of the Southeast Quarter, and the Southwest Quarter of the Southeast Quarter. 122 acres.
"George C. Cortwright, Jr. The southwest quarter. 160 acres.
"Charlotte Womack in Section 9, Township 12, Range 7. 315 acres."
It was shown, by a survey, that the foregoing tracts of land, as assessed above, constituted the south half of said section.
The court below excluded the parol evidence; held the patent and the appellant's deed void; and canceled the title of the appellant thereto.
We are of the opinion that the decree of the court below was correct; that the description of the land struck off to the state by the sheriff and tax collector was void; and, consequently, the state had no title thereto vested in it as against the true owner of the land. Herein is a patent ambiguity with no clue in the assessment of this land or in the list of lands sold to the state.
The contention of the appellant is that the state acquired a good title by the above description under section 3151, Code 1930. In Dodds v. Marx, 63 Miss. 443, this court held that the roll must furnish the clue which, when followed by aid of parol testimony, conducts certainly to the land intended. The description on the assessment roll must give the start and suggest the course which, when followed, will point out the land to be assessed. That this clue must be furnished and appear on the list of lands struck off by the sheriff and tax collector to the state, and cannot be supplied merely by the name of the owner to whom the land is assessed, has been clearly announced in Carr v. Barton, 173 Miss. 662, 162 So. 172, which opinion was cited with approval in Ransom v. Young et al., 176 Miss. 194, 168 So. 473.
With reference to the application of the specific section relied on by appellant, Chief Justice Whitfield, in Smith et al. v. Brothers, 86 Miss. 241, 242, 38 So. 353, held that the "assessment roll cannot aid the description in a tax deed when it contains a patent ambiguity." This construction of the statute is not in conflict with the case of Reber v. Dowling, 65 Miss. 259, 3 So. 654, 7 Am. St. Rep. 651. There the description was one lot, southwest corner Pine and Franklin streets. The corner of these two streets was located; therefore, there was a clue, aided by parol evidence, which rendered the description of the land certain.
Nor is there any aid for the appellant in the case of Wheeler v. Lynch, 89 Miss. 157, 42 So. 538, wherein the description was: "West part northwest 1/4, section 29, township 1, range 8, one hundred and ten (110) acres, more or less." Judge Calhoon, speaking for the court, held that this description was not a patent ambiguity; the reason being that the west part of the northwest 1/4 was a clue by which the land could be laid out on the ground. The clue to the particular land which is the subject of the sale must be found on the assessment roll. Section 3151, Code 1930, never intended to permit the titles to land to roam at large nor that a correct description be found in such an uncertain manner as to permit recourse to the entire assessment of all lands of a county. The clue must be found in the particular assessment.
In the court below the appellee demanded rents from the appellant for the use and occupation of the land in question, whereupon appellant filed a bill of particulars demanding compensation for the improvements made upon the land. The court below allowed rents for the years 1935, 1936, and 1937 to appellee; offset the rents due her for the years 1935 and 1936 by the improvements placed on the land by the appellant; and held the appellant liable for rent for the year 1937. The evidence was in conflict as to the value of the improvements placed on the land by the appellant, and also as to the quantity of timber cut from the land by him. None of the evidence conformed to the rule set forth in section 1475, Code 1930. Defendant is allowed such compensation for improvements when he claims the premises "under some deed or contract of purchase acquired or made in good faith." Section 1474, Code 1930.
The chancellor evidently adopted the view of the appellee. We cannot say that his view was manifestly wrong. To illustrate: Appellant testified that he had built a dwelling house on the place which cost him $1,500. The evidence shows on behalf of appellee, without conflict, that she notified him on July 29, 1935, he had no title to the land. She demanded possession thereof, directed him to remove therefrom, and at that time, according to her statement, the foundation only of the house in controversy had been laid. On the other hand, appellant does not claim that he had completed the erection of the house when appellee served notice on him. From and after this notice, appellant was a male fide possessor. See Cole v. Johnson, 53 Miss. 94; Gaines v. Kennedy, 53 Miss. 103. At the time the notice was served on him, it was purely a question of law. The law was against him; and improvements on the lands from that time were made at his peril. Holmes v. McGee, 64 Miss. 129, 8 So. 169.
As to the amount of timber cut, the conflict cannot be harmonized. We are, therefore, of the opinion that we cannot disturb the finding of the chancellor.
Affirmed.