Opinion
No. 38620.
March 16, 1953.
1. Clouds on title — adverse possession — good record title, when required and burden of proof.
In a suit to cancel clouds on title when the claimant has failed to establish title by adverse possession, it devolved upon him to deraign and prove a good record title and he is required to prevail upon the strength of his own title and not on the weakness of that of his adversary.
2. Tax deed — description — land within description.
Where a party relies on a tax deed to sustain his claim to particular land it is necessary for him not only to establish the validity of said deed but to prove also that the description in the deed embraces the land so claimed by him.
3. Tax deed — uncertainty of description — construction respecting.
In construing a tax deed it is to be borne in mind that the deed is not to be held void for uncertainty in description, if by any reasonable construction it can be upheld.
4. Tax deed — description — capability of location by a surveyor.
A tax deed in which the land is described as "77 acres in north part" of a named section, township and range in a named county is sufficient in description, since by it the land is capable of location by a surveyor.
5. Clouds on title — proof as to only part of the lands involved — appeal.
In a cloud suit where the claimant has proved that only a part of the land in question is embraced within the description of his deed, the decree in his favor will be modified so that it shall cover only the part within the description.
Headnotes as approved by Holmes, J.
APPEAL from the chancery court of Amite County; F.D. HEWITT, Chancellor.
Cassidy, McLain, Alford Piggott, for appellants.
The complainant in this suit claims title by virtue of a tax collector's deed to "77 a. North part Section 48, Township 1, Range 3" for taxes assessed thereon for the year 1927 when Liberty Bank became the best bidder for said land; and the complainant claims that the said Liberty Bank obtained title thereby. In Ransom v. Young, et al., 176 Miss. 194, 168 So. 473, it was held that due process of law requires a sufficient identification of the property assessed before a lien thereon or a title thereto can be acquired. The Court also held that an insufficient description of land on the assessment roll cannot be aided by extrinsic evidence and that the name listed under the heading of "Owner" could not aid the description. In the absence of a proper description or a clue from which a proper description can be certainly placed, the assessment is void and a sale thereunder passes no title. In deciding this case, the Court cited the case of Carr v. Barton, 173 Miss. 662, 162 So. 172, wherein the Court cited numerous cases, holding that there must be a certainty in description on the assessment roll or some reference in the assessment roll or some indication which will lead or point to a sufficient description. This is one of the elements of due process of law; and before a person can be deprived of property by assessment and sale, there must be some data in the assessment which will clearly lead to identification of the property. It is not sufficient to describe lands on an assessment roll in such manner as that different minds might reach different conclusions. United States v. L. Cohen Grocery Co., 255 U.S. 81, 42 S.Ct. 298, 65 L.Ed. 516, 14 A.L.R. 1045, where numerous other cases were cited. Considering the cases above referred to together with the tax collector's deed upon which the complainant claims a perfect title, it would appear that the description in the said tax collector's deed is void and, therefore, no title was passed by virtue of said deed.
It will be remembered that the section of land in which the land in controversy is located is an irregularly shaped Spanish grant section.
In the case at bar, even after the oral proof, it still remained a mere matter of conjecture as to what was intended to be conveyed by the tax collector's deed. 26 C.J.S. 216, states, "If there is a conveyance of part of the tract, such part must be so distinguished that it may be definitely ascertained and identified and where a deed calls for a part of a larger tract of land and there is no identification of the part intended to be conveyed, by measurement or quantity, and nothing further in the deed by which the part may be identified, there is an uncertainty vitiating the deed." Morgan, et al. v. Schwartz, 66 Miss. 613, 6 So. 326; Calvert, et al. v. Mathers, 149 Miss. 671, 115 So. 780; Delk v. Hubbard, et al., 153 Miss. 869, 121 So. 845.
In the case of Nelson v. Abernathy, 74 Miss. 164, 21 So. 150, it was held that the description "37 acres in the North half of Section 1, Township 13, Range 4" was void for uncertainty, citing the cases of Sims v. Warren, 67 Miss. 278, 7 So. 226, and Pearce v. Perkins, 70 Miss. 276, 12 So. 205. In the case of Smith, et al. v. Brothers, 86 Miss. 241, 38 So. 353, the Court held a tax deed void for patent ambiguity in the description; and further stated that the fact that if the assessment roll furnishes some clue which if followed 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, 52 Miss. 596, that a description in a tax deed will be void if the ambiguity therein is patent. In the case of Hatchett, et al. v. Thompson, 174 Miss. 502, 165 So. 110, complainant attempted to quiet and confirm title to seventy acres of ground held by virtue of a tax title. The defendants answered alleging invalidity of the tax title as a result of uncertain and insufficient description in the tax deed. The Court in reversing the decree in favor of the complainant stated that it is the settled rule in this state that all the requirements of law for the sale of property for taxes must be complied with and one relying upon a tax title must show its validity. The Court further held that the description in the tax deed made an exhibit to the bill was void for uncertainty which constitutes a patent ambiguity, citing the case of Carr v. Barton, et al., 173 Miss. 662, 162 So. 172, wherein a number of decisions were discussed at length holding that due process of law required that to create a lien the tax assessment must describe property with certainty or certain data clearly leading to identification, for want of which a patent ambiguity exists and the description is rendered void.
Gordon Gordon, for appellee.
The appellants in their brief argue at great length the invalidity of the tax title of the Liberty Bank as made exhibit "a" to the bill of complaint. We submit without argument that the description, "77 acres North part Section 48, Township 1, Range 3," was not a true and correct description of the lands here involved in this suit sought to be confirmed, but without question, would cover a portion of the land in the northern part. The testimony shows that the possession of the appellee was to the whole of said lands under the color and claim of title through the tax deed and deed of the Liberty Bank and such possession cured the title to the whole of said tract.
The Court announced the rule in the case of Shepherd v. Cox, 191 Miss. 715, 4 So.2d 217.
Your appellee would further show that the appellant recognized the superior claim and title of the appellee by offering to exchange other lands with the appellee for this land and by securing a surveyor to establish a line between his lands and the lands of the appellee and notifying the surveyor that he wanted to establish the line between his lands and the Kinabrew tract which was owned by the appellee. Mr. DeLee pointed out to the surveyor the approximate location of the west line of his Austin tract which later proved to be near the actual location of this line. The Court said in the case of Eddy v. Clayton, et al., 44 So.2d 395: "Moreover, the request of appellant to purchase the land, which was later repeated, is a pointed answer to any contention of an adverse claim, since it was an acknowledgment of a superior title and claim of Mrs. Clayton. 2 C.J.S., Adverse Possession, Sec. 151(d), p. 718."
The appellee, Fred A. Anderson, Jr., filed his bill in the Chancery Court of Amite County, seeking to confirm his title to approximately 52.29 acres of land in said county, and to cancel as a cloud upon his title all claims of the defendants thereto. Numerous parties were named as defendants in the bill, including E.V. Mosely, Trustee of the Magnolia State Oil and Land Company, the holder of mineral interests in said land, the Atlantic Refining Company, the holder of an oil, gas, and mineral lease on said land, the State of Mississippi, C.E. Austin, David A. DeLee, and Mrs. David A. DeLee.
The appellee alleged that he was the owner of and in possession of said land and that the defendants were wrongfully asserting a claim or right thereto. The mineral and leasehold interests of E.V. Mosely, Trustee, and the Atlantic Refining Company, were not questioned. The State of Mississippi answered but asserted no interest in the land or controversy. C.E. Austin, David A. DeLee and Mrs. David A. DeLee answered, denying the allegations of the bill and contesting the right of appellee to the relief prayed for. Decrees pro confesso were taken against all parties failing to answer. The real controversy is between the appellee, Fred A. Anderson, Jr., and the appellants, C.E. Austin, David A. DeLee, and Mrs. David A. DeLee.
The appellee claimed title to the property through a tax collector's deed executed April 2, 1928 to Liberty Bank, and through a deed from the Liberty Bank, In Liquidation, to him dated July 15, 1937, and by adverse possession. C.E. Austin, David A. DeLee and Mrs. David A. DeLee claimed title to the property by adverse possession. The cause proceeded to hearing at the July, 1951 term of the court, and at the conclusion of the introduction of evidence, both oral and documentary, the chancellor entered a decree granting the prayer of the bill and the said C.E. Austin, David A. DeLee and Mrs. David A. DeLee appealed therefrom.
We think the evidence was insufficient to establish title by adverse possession in either the appellants or the appellee.
(Hn 1) In the absence of a sufficient showing of title by adverse possession in the appellee, it devolved upon him to deraign and prove a good record title to the property. He was required to prevail upon the strength of his own title and not upon the weakness of that of his adversary. Gilchrist-Fordney Co. v. Keyes, et al., 113 Miss. 742, 74 So. 619; Calvert, et al. v. Mathers, 149 Miss. 671, 115 So. 780. (Hn 2) Appellee relies upon the validity of the aforesaid tax collector's deed dated April 2, 1928. It was necessary, therefore, not only for the appellee to establish the validity of said deed but to prove that the description in said deed embraces the land, title to which is here sought to be confirmed.
The appellants assail the validity of the said tax collector's deed upon the ground of insufficiency of description. The description of the land in the tax collector's deed was as follows: "77 acres north part Section 48 Twp. 1, Range 3," shown in the deed to be located in Amite County, Mississippi. The question first presented, therefore, is as to the sufficiency of said description. (Hn 3) In construing the tax collector's deed, it is to be borne in mind that the deed is not to be held void for uncertainty of description if by any reasonable construction it can be upheld. This rule was announced by this court in the case of McLendon v. Ravesies, 178 Miss. 428, 173 So. 303, as follows: "It is a cardinal rule in the construction of deeds that a deed will not be held void for uncertainty of description if by any reasonable construction it can be upheld. 18 C.J., p. 181." (Hn 4) We think that the land as described in the deed is capable of location by a surveyor and that it is, therefore, sufficient.
In the case of McCready v. Lansdale, 58 Miss. 877, the following description in a tax conveyance was held to be sufficient: "E. p't. S.W. 1/4, Sec. 38, T. 1, R 1 W. Acres 20."
In the case of Enochs v. Miller, 60 Miss. 19, the following description was held to be sufficient: "107 acres in the south part of southeast quarter of Sect. 22, T. 3, R. 2 West."
In holding such description to be sufficient the Court said: "The deed was not void for uncertainty. Land described as a specified number of acres of the south, or north, or east, or west part of a particular section, or legal subdivision of a section, is perfectly well described and there is not the slightest difficulty in laying it off, as has been at least twice decided by this Court. Bowers v. Chambers, 53 Miss. 259; McCready v. Lansdale, 58 Miss. 879."
In the case of Beasley et al. v. Beasley, 177 Miss. 522, 171 So. 680, the following description was held to be sufficient: "South part of Northwest 1/4, Section 18, Township 16, Range 4, containing 42 acres." In holding this description to be sufficient, the Court said: "A description of the south part of a portion of land is capable of location by a surveyor. He could lay off 42 acres so as to constitute the southern portion of that subdivision."
The reasoning of the foregoing decisions supports the description now under review, and we have concluded that it is sufficient and that the tax deed in question is not invalid.
Appellee was next required to prove, however, that the description in the tax collector's deed embraces the land, title to which is here sought to be confirmed. (Hn 5) We think that he has made this proof only as to a part of said land. It is manifest from this record that the description in the tax collector's deed embraces only a part of the land, title to which is here sought to be confirmed.
We are accordingly of the opinion that the decree of the court below should be and it is modified so as to apply only to that part of the land, title to which is here sought to be confirmed, which is embraced in the description in said tax collector's deed, and as so modified the decree of the court below is affirmed. The appeal costs should be taxed against the appellants.
Affirmed as modified.
McGehee, C.J., and Hall, Arrington, and Lotterhos, JJ., concur.