Opinion
December 13, 1948.
1. Evidence — uniform method of conduct — inference sustainable thereby.
When on any serious occasion a uniform method of conduct is shown to have been openly and publicly pursued, it is a reasonable inference sufficient to support the affirmative of the issue that, as a probability in regard to a particular event in the course thereof, the same method was pursued.
2. Tax sales — testimony by bidders present as to how made.
Where private persons were in attendance at a tax sale as bidders thereat and whose attention was particularly drawn to the manner in which the sales were made, they may be heard to testify that the course of conduct pursued throughout the day was to make separate sales under and according to each separate assessment, although they may not recall or did not observe how the particular sale in question was made.
3. Evidence — self-contained latent ambiguity — parol testimony admissible.
When the record of a tax sale is such that it is capable of the construction that only a single sale was made of a contiguous tract of land, and equally capable also of the interpretation that two sales were made, there is a self-contained latent ambiguity and parol testimony by private persons will be admitted to show that as a matter of fact two sales were made of the land in two separate parcels.
APPEAL from the chancery court of Forrest County, GEORGE W. CURRIE, Special Chancellor.
Ben Stevens, L.B. Jones, and H.K. McKee for appellant.
"The court erred in admitting testimony objected to by the appellant, as shown by the record."
Under this heading, we submit that not only was the testimony of the witness Hudson inadmissible in testimony, but that the testimony of the witness Ryan, was thoroughly incompetent, immaterial and irrelevant, and should not be admitted. Due objection was made, and repeatedly made, to the admissibility of that testimony all of which was an attempt by appellee to prove by these witnesses that the sheriff's official report of his tax sale was not in conformity with the facts, and was an attempt to vary and contradict that list by the testimony of outsiders who happened to be hanging around the tax sale for the purpose of bidding on various properties being sold. They both frankly admitted that they could not specifically testify how the sheriff handled the sale of the Leavenworth properties.
We submit that the decision cited under the fourth assignment of errors as to the admissibility of the testimony of Hudson are equally applicable to the testimony of these witnesses, and we point out to the court that in the case of Cox v. Richerson, 186 Miss. 576, 191 So. 99, 124 A.L.R. 1138, the court held that an attorney who represented the purchaser at the tax sale could not be heard to testify in contradiction of the sheriff's official acts and records which in that case were three tax deeds executed by the sheriff. Surely, however, if an attorney representing a party purchasing at a tax sale and who was present at the sale in the interest of his client cannot be heard to contradict or vary the official report of the sheriff or the tax deed of the sheriff duly executed by the sheriff, then no mere hanger-on at a tax sale and no other member of the public can be heard to vary the record or contradict it.
It would be the height of legal folly, as we see it, to permit a member of the public, by parol testimony, to vary or contradict public records and official documents of various officers duly executed and filed by him, when the official himself cannot do so. Moreover, if such "outside" testimony is held competent, there will never be any sanctity, conclusiveness or anything else valid, binding and reliable in any public record required to be competent by an official under his due certificate and signature.
Fleet C. Hathorn, Jr., Williams Williams, and E.C. Fishel, for appellee.
The testimony of the witness, Hudson, does not contradict said official report, but upon the contrary his testimony was that two sales of one contiguous tract of land owned by the same owner were made instead of one, each for a separate and distinct amount or consideration. This evidence does not contradict said report but up holds, sustains, and explains the same and bears out what not only said official record shows, but also what the assessment roll, the advertisement and the tax receipt from which the advertisement was made up show. This testimony of the deputy tax collector was competent by the repeated decisions of this court and by the authorities everywhere, in so far as we have been able to find. See especially the cases of Stevenson v. Reed, 90 Miss. 245, 43 So. 433; Hinson v. Forsdick, 25 So. 353; Jones County Land Co. v. Fox, 83 So. 241; Carter v. Moore, 183 Miss. 112, 183 So. 513; Slush v. Patterson, 28 So.2d 738; and Webb v. Mobile O.R. Co., 62 So. 168, which specifically holds that parol testimony is competent in cases of this kind. None of these cases have ever been reversed but have stood for more than half a century as the settled law of the land, and we are surprised at counsel for appellees contending that the testimony of the deputy tax collector was incompetent.
From the authorities cited by the appellant, it seems to be her idea (1) that the deputy tax collector was a judicial officer, and (2) that the recital in the tax collector's list that he sold said lands "pursuant to the requirements of law" is a conclusive presumption. This idea of appellant is an erroneous idea for the rule everywhere is that the sheriff is a ministerial officer, and is not a judicial officer. It is likewise the rule everywhere that recitals contained in a tax collector's deed that he hold the land "pursuant to the requirements of law" are only prima facie evidence of the regularity and legality of the sale. See Annotation in 30 A.L.R. pages 9, 10, 13, and 30.
In this connection, we call attention to the fact that under the common law rule a tax deed and its recitals were not evidence that all the requirements of law authorizing its execution had been complied with, but the party claiming under the deed was required to prove such a compliance. See 30 A.L.R. 9.
In other words, under the common law rule, it was incumbent upon one claiming under a tax deed or a tax sale to show by the sheriff and tax collector that he did sell the land "pursuant to the requirement of law."
Statutes making a tax deed or list prima facie evidence of the regularity of the proceedings relating to the sale (See Section 1578, Mississippi Code of 1930, Section 1739, Code of 1942) simply shift the burden of proof from the purchaser to the person who attacks the validity of the sale. None of the courts have ever held that such statutes have the effect of making the sheriff a judicial officer; and none of the courts have ever held that either a tax collector's deed or his certified list of lands sold for taxes is a record that imports absolute verity and must be tried by itself. On the contrary, the prima facie statute simply shifts the burden of proof from the purchaser to the person who attacks the validity of the sale, and in such attack the sheriff is a competent witness, as he was before the enactment of such prima facie statutes, to testify either to sustain, explain, uphold or contradict his records or as to whether or not he made the sale "pursuant to the requirements of law." In this connection see the note appearing in 30 A.L.R. page 25.
As to the effect of such statutes on the burden of proof, and in addition to the authorities above cited, we also cite Belcher v. Mhoon, 47 Miss. 613, wherein the Supreme Court of Mississippi held that the legislature by such statutes "merely shifted the burden of proof," and the case of Ray v. Murdock, 26 Miss. 692, which was cited and approved in the last cited case, and wherein the tax collector was, over objection, permitted to testify as to how he sold the land, and wherein Judge Handy, speaking for the Supreme Court, said: "We think that the deed was only prima facie evidence of the authority of the tax collector to make the sale; and, therefore, that the evidence offered was properly admitted."
From the foregoing authorities, we respectfully submit that it abundantly appears that the testimony of the deputy tax collector Hudson and of the witnesses Ryan and Force was competent and that the Chancellor did not commit error in permitting them to testify as to the manner in which said sales were made.
The authorities cited by appellant do not sustain her contention that the deputy tax collector and the witness Ryan and Force were incompetent to testify as to the manner in which said sales were made. All of the cases cited by appellant are cases involving the minutes of courts or boards acting in a judicial capacity, except the case of Word v. Sykes, 61 Miss. 649, which did not involve a tax sale. However, it is significant to note that the court in that case held that: "It was entirely competent to sustain the returns as made by the tesimony of the canvassers who made them." This case therefore supports appellee's position on this point, and not that of appellant.
The case of Carr v. Barton, 162 So. 173, in no way supports the contention of appellant. It comes nearer supporting the position of appellee on this point than it does of supporting the position of appellant.
This brings us to the case of Cox v. Richerson, et al, 186 Miss. 576, 191 So. 99, so strongly relied upon by appellant. As will be seen from an examinatin of that case an attempt was made to contradict what the record showed by offering testimony of the attorney and agent of appellant who purchased the land for appellant at said tax sale. In other words, appellant in that case attempted to prove exactly what appellant is attempting to prove in this case, viz, that a tax sale which showed on its face that it was void was, in fact, a valid tax sale, and thereby to reform the three tax deeds there involved, and the Supreme Court in that case held that a purchaser at the tax sale must stand upon his deed as written, and that parol testimony was incompetent to reform it. In the case at bar, appellant offered the witness Mrs. McCabe and a pretended list of lands different from the record list in an effort to change or reform said recorded list and thereby show that the same did not speak the truth. Appellee objected to this testimony, because it was an effort to impeach the official record of said tax list, and we submit that under the case of Cox v. Richerson said testimony was incompetent, and that the trial court should not have permitted these two witnesses to testify in an effort to have said numbers stricken from the face of said official record.
If we were correct in this contention, then appellant is in fact in exactly the same position on this appeal that she was in on the first appeal. However, if we are incorrect in this position, then certainly when appellant opened the floodgates of oral testimony in an effort to reform said official list, she could not close these floodgates of oral testimony at the end of such testimony offered by her, but under the authorities above cited by us the burden of proof was simply shifted to appellee to meet such proof offered by appellant and show by the same kind of testimony as that offered by appellant that said official record did speak the truth, and that two sales, instead of one, were in fact made by the tax collector as shown by said list.
We further think that what the court held in the case of Cox v. Richerson is that a purchaser at a tax sale must stand upon the deed or list as written and cannot offer oral proof to change or vary said deed or list as written but that the owner of the land may always show the true facts in connection with said sale, and may show by oral or record testimony that the sale was not made "pursuant to the requirements of law." In other words, as we have pointed out above, the common-law rule casting this burden upon the purchaser at the sale to show that it was made pursuant to the requirements of law was shifted to the owner to show that it was not made pursuant to the requirements of law. And this the owner can do by parol as well as record evidence.
Appellant, under her assignment of errors No. 5, contends that the testimony of the witnesses Ryan and Force was incompetent. These two witnesses, in detailing the manner in which the sale was made, testified positively (counsel for appellant to the contrary notwithstanding) that two sales of one continguous tract of land owned by the same owner were made; and appellant offers no argument to show that the evidence was not competent except the case of Cox v. Richerson, supra, wherein, as we have already pointed out, the testimony of the attorney who purchased at said sale was offered to show that one sale was made when the deeds on their face showed that three sales were made, just as appellant offered to prove by testimony she offered on trial of this case that one sale was made, whereas the tax list, assessment roll, advertisements and tax receipts show that two sales of one tract of land were made. And, as we have pointed out, this testimony in the Richerson case was held to be incompetent because it was an effort to reform the deeds and make them speak something contrary to what they showed on their faces. If such testimony had been offered for the purpose of showing that what the deeds reflected on their faces was true, then it would have been competent under an unbroken line of decisions of this court, beginning with the case of Hinson v. Forsdick, supra, which have stood as the settled law of this State for more than half a century. And under this unbroken line of decisions, the testimony of these two bystanders, who were disinterested and whose testimony is uncontradicted, was not only competent, but proved beyond question that two sales of said land were made instead of one. And their testimony, if standing alone, would be sufficient to overcome any presumption that the sales were made "pursuant to the requirements of law."
This is the second appearance of this case, the first being reported in 197 Miss. 606, 19 So.2d 815, 20 So.2d 821. In that appeal, as seen from the opinion, it appeared that, upon the face of the record itself, there were two separate sales of continguous tracts assessed to the same owner, and, as a consequence, the sales were void under the statutes as they existed at the time of the sales.
When the case reached the trial court on the remand, the reformed pleadings and the evidence then taken, as appears from the present record, were such as to show that the numbers 217 and 218, which appeared in the former record as indicating separate sales, were not in fact on the original list by the tax collector of the lands sold by him to the State, but that the clerk in transcribing the list upon the record book of Lands Sold to the State, added the numbers on the supposition that there were separate sales, when in fact there were no such numerals anywhere on the original list as filed by the tax collector with the clerk, and appellant, the purchaser of the tax title from the State, thereupon invoked the presumption applied in State v. Wilkinson, 197 Miss. 628, 20 So.2d 193, 836, that inasmuch as it was the duty of the tax collector to sell the lands in such a case as one tract in one sale, the court should hold that, under the corrected record as now shown, there was only one sale instead of two, even though the contiguous lands were separately assessed as if two separate tracts, and the record of his sales as filed by the tax collector would bear the interpretation that he made two separate sales of a contiguous tract instead of one.
To meet the presumption, appellee, the owner, introduced the deputy tax collector who actually made the sales, and his testimony was clearly and distinctly to the effect that he made two sales of the land in question instead of one, and in this he was corroborated by two tax land purchasers who attended the sale and who observed, as persons interested therein, how the sales were actually made. This testimony is undisputed by appellant, but she contends that the oral testimony mentioned in this paragraph was wholly incompetent, objections to that effect having been duly interposed at the hearing; and this forms the principal question for decision.
It is at once apparent that the list of his sales as made by the tax collector is capable of two interpretations, and this without any inconsistency as to what was shown by him on his said list. Looking to the list, it is capable of the interpretation that he made two sales of this land, and it was so considered by the clerk, as already mentioned. On the other hand, it is equally capable of the interpretation that the collector made only one sale of the contiguous lands, as we held in the Wilkinson case, supra.
Appellee cites and relies on Stevenson v. Reed, 90 Miss. 341, 43 So. 433, wherein it was held that so long as his testimony is consistent with, and not in contradiction of, the official record, the tax collector may state as a witness how the sale was made, although the effect of such testimony is to invalidate the sale. Appellant says in reply that the cited case has been overruled sub silentio through the long period of time during which no attention has been paid to it and that it ought to be now expressly overruled, this, as she says, because to allow the tax collector to testify to invalidate the sale would be in contravention of his official certificate that he made the sale "pursuant to the requirements of law."
We do not find it necessary to decide the particular point last mentioned, and therefore pretermit it, the proof being sufficient in our opinion to sustain the decree, laying aside the testimony of the tax collector and (Hn 2) looking only to the testimony of the two private citizens who were in attendance upon the sales as bidders thereat and whose attention was particularly drawn to the manner in which the sales were conducted — how the sales were made. It is true that they did not observe, or else did not recall, how the sale or sales was or were made of the particular tract of land here involved, but they did observe and distinctly recall the course of conduct pursued throughout the day of the sales and that this was to make a separate sale under and according to each separate assessment, — and this land was separately assessed for that separate portion in each section, as we have already indicated. (Hn 1) When on any serious occasion a uniform method of conduct is shown to have been openly and publicly pursued, it is a reasonable inference, sufficient to support the affirmative of the issue, that as a probability in regard to a particular event in the course thereof, the same method was pursued. This principle is sufficiently illustrated by the text, and the cases cited thereunder, in 32 C.J.S., Evidence, Sec. 581, page 437.
(Hn 3) Here the record of these sales presents what is sometimes called in the books a self-contained latent ambiguity, 4 Jones Com. Ev. p. 2826, a doctrine which is recognized as a part of the jurisprudence of this State as seen in Schlottman v. Hoffman, 73 Miss. 188, 18 So. 893, 55 Am. St. Rep. 527, wherein it was held that an ambiguity such as we here have under consideration is to be assigned to an intermediate class partaking of the nature of both patent and latent ambiguities, and that as to the admissibility of parol evidence, such a case is to be considered as belonging to the class of latent ambiguities wherein such evidence is admissible. (Hn 2) The testimony of the two private persons who were bidders at the sale was admissible, therefore, and as already stated, was sufficient to sustain the finding of the chancellor that two sales of this land were made, which rendered the sale invalid.
We have carefully examined the other contentions made by appellant but find therein no ground for a reversal.
Affirmed.