Opinion
No. 39459.
January 24, 1955.
1. Taxation — tax title — invalid.
Where deed reference, both in assessment and in tax patent, was erroneous, and land was described as being in wrong section, and tax patent, unlike assessment, did not show land to be in correct town, holder of tax patent acquired no title.
Headnote as approved by Lee, J.
APPEAL from the chancery court of Jackson County; D.M. RUSSELL, Chancellor.
Amy Burkett, Ocean Springs, for appellant.
I. The Court erred in holding that the map of the town of Ocean Springs, made in 1854 by N. Culmseig, was made without authority from any form of government or otherwise, and that it was never approved nor recorded by any public authority. Crawford v. McLaurin, 83 Miss. 265, 33 So. 209, 35 So. 959; Meek v. Farmers' Co-op (AAL), 216 Miss. 140, 61 So.2d 778; Pearce v. Tharp, 118 Miss. 107, 79 So. 69; Richter v. Beaumont, 67 Miss. 285, 7 So. 357; Wellborn v. Muller, 84 Miss. 726, 36 So. 544; Sec. 9772, Code 1942; 18 C.J., Deeds, Sec. 67 p. 184.
II. The Court erred in holding that because the Culmseig Map did not show the boundaries of claim Section 37, Township 7 South, Range 8 West, but indicated the entire area included in Section 37 and fractional Section 30 as being fractional Section 30, a description according to said map was not valid. Crawford v. McLaurin, supra; Humes v. Krauss, 221 Miss. 301, 72 So.2d 737; H. Weston Lumber Co. v. Strahan, 128 Miss. 54, 90 So. 452; Ladnier v. Cuevas, 138 Miss. 502, 103 So. 217; Martin v. Smith, 140 Miss. 168, 105 So. 494; Pegram v. Newman, 54 Miss. 612; Reber v. Dowling, 65 Miss. 239, 3 So. 654, 7 Am. St. 651; Standard Drug Co. v. Pierce, 111 Miss. 354, 71 So. 577; Secs. 9772-3, Code 1942; 18 C.J., Deeds, Sec. 69 p. 185.
III. The Court erred in holding that confirmation of appellant's title to land as in Section 37, when the Forfeited Tax Land Patent showed it as in Section 30, would be in effect a reformation of a tax title deed. Albritton v. Fairley, 116 Miss. 705, 77 So. 651; Dodds v. Marx, 63 Miss. 443; Howard v. Wactor (Miss.), 41 So.2d 259; Illinois Cent. R.R. Co. v. LeBlanc, 74 Miss. 650, 21 So. 760; Jefferson v. Walker, 199 Miss. 705, 24 So.2d 343, 26 So.2d 239; Reed v. Heard, 97 Miss. 743, 53 So. 400-02; Trager v. Jenkins, 75 Miss. 676, 23 So. 424; Wheeler v. Lynch, 69 Miss. 157, 42 So. 538; Secs. 9773, 9775, Code 1942.
IV. The Court erred in holding that appellant's title to the lands involved could not be confirmed because the name of the city of Ocean Springs does not appear on the forfeited tax land patent involved. Reber v. Dowling, supra; Standard Drug Co. v. Pierce, supra.
V. The Court erred in refusing to confirm complainant's title and dismissing her bill.
VI. The Court erred in finding and holding that the appellee, Eleanor Bradford Lemon, was entitled to the relief prayed for in her cross-bill of complaint. Allison v. Allison, 203 Miss. 15, 33 So.2d 289; Wall v. Wall, 177 Miss. 743, 171 So. 675; Whitney Cent. Natl. Bank v. First National Bank, 158 Miss. 93, 130 So. 99; 2 C.J. 85, et seq.; Annos. 28 L.R.A. (N.S.) 914; 1 R.C.L., Adverse Possession, Sec. 30 p. 716; 8 R.C.L., Deeds, Sec. 121 p. 1067; 10 R.C.L. 294, et seq.; 23 R.C.L., Secs. 14, 15.
VII. The Court erred in ordering and decreeing that the forfeited tax land patent issued by the State of Mississippi to Iola Y. Davidson, and the deed from said Iola Y. Davidson to appellant be cancelled as clouds upon the title of the appellee, Eleanor Bradford Lemon.
VIII. The Court erred in ordering and decreeing that the quitclaim deed from Chas. N. Michael and Ida L. Michael to appellant be cancelled as a cloud upon the title of the appellee, Eleanor Bradford Lemon.
IX. The Court erred in ordering that title to the land as described in the decree be confirmed in the appellees against appellant, the said description not being the same description as in the deed under which the appellee, Eleanor Bradford Lemon, claims, or as stated in her cross-bill of complaint and the prayer thereof, which was in effect a reformation of a quitclaim deed without any allegation in the cross-bill that the grantors in said deed intended thereby to convey the lands as described in the decree, and without the grantors in said deed being parties to the suit.
Heidelberg Watts, Pascagoula, for appellees.
I. Cited and discussed the following authorities: Goff v. Avent, 129 Miss. 782, 93 So. 193; H. Weston Lumber Co. v. Strahan, 128 Miss. 54, 90 So. 452; Seward v. Carter, 190 Miss. 534, 200 So. 248; Griffith's Miss. Chancery Practice (2d ed.), Secs. 219, 220.
Mrs. Iris D. Figeuroa filed her bill in the Chancery Court of Jackson County to confirm her asserted title to certain lots in the town of Ocean Springs. She claimed through a forfeited land patent from the State. She named, as defendants, the State and Eleanor Bradford Lemon and husband, J.K. Lemon. By their answers, the defendants denied that the complainant was entitled to any relief. The Lemons made their answer a cross bill, and prayed for confirmation of their title as against the complainant. After hearing all of the evidence, the Court dismissed the bill of complaint, and granted the relief prayed for in the cross bill. From that decree, Mrs. Figeuroa appealed.
The lots in question were sold to the State on April 4, 1933 for delinquent taxes for the year 1932. The description of the lots appeared on the assessment roll under the general heading "Ocean Springs," and were assessed in the name of Charles N. and Ida L. Michael as follows: "All lots 13, 14 part of Lot 15, Blk. 35 per D.B. 58, pages 86, 87, Sec. 30, T. 7, R. 8."
On June 16, 1941, Iola Y. Davidson obtained the patent from the State. The description therein was the same as appeared on the assessment roll except that it did not state that the lots were in Ocean Springs. On August 25, 1941, Iola Y. Davidson conveyed the lots to Mrs. Figeuroa, and it is through this conveyance and the patent that Mrs. Figeuroa claims. The appellees, Mrs. Eleanor Bradford Lemon and J.K. Lemon, claim through a quitclaim deed of date of February 8, 1940, from Charles N. and Ida L. Michael, who were the owners at the time of the sale.
The tax patent described the lots as being in Section 30, and makes reference to D.B., meaning deed book 58, pp. 86 and 87.
The land, which is claimed by the appellant, is in fact in Section 37 instead of Section 30. Both of these sections contained less than the usual 640 acres, but they were established by the governmental survey. Section 37 is known as the Widow LaFontaine Claim Section, contains 236.95 acres and is west of Section 30, which contains 205.92 acres. The confusion seems to have arisen from a map said to have been made by N. Culmseig in 1854, when he simply lumped the sections together. This map was neither official nor of record.
The case of Goff v. Avent, 122 Miss. 86, 84 So. 134, seems to be directly in point. Goff sought to cancel the claim of Avent to certain land in Section 42, Township 1 South, Range 8 West. He deraigned his title from Daniel Greene. Greene was occupying his tract when the government acquired the territory; and it recognized his claim and designated his land as Section 42. There were other claimants, and the government did likewise as to them, with the result that the township was divided into 47 instead of 36 sections. Section 42 would have embraced and coincided with the NW 1/4 of Section 27, the S 1/2 of Section 22, and the SW 1/4 of Section 23, if the township had been divided into 36 regular sections. In the conveyances under which Goff obtained title, the lands were described as being in Sections 22, 23, and 27, as above described, instead of Section 42. The bill alleged that it was the custom of landowners in that vicinity to describe the lands in the irregular sections by what would have been the proper description thereof, if the township had been divided into 36 regular sections. The Court said that: "The complainant has failed to show any title in himself, and this he must do before he can question the title of the defendant." The Court further said: "The land in controversy is not embraced in the description of the land conveyed in the deeds through which the complainant claims; for, where land is described in a conveyance by sectional numbers according to the government's survey thereof, the land thereby conveyed is that only which is situated within the designated sections as surveyed and platted by the government; the original corners and lines thereof established by the government being their true and only boundaries. That the parties to these deeds may have intended thereby to convey land that would have been included in the designated sections had they been of the regulation size can avail the complainant nothing; for when the meaning of language is to be determined by the court the intent of the parties, expressed in the words they had used, must govern."
On a re-trial of this case, Goff v. Avent, 129 Miss. 782, 93 So. 193, again the Court said that "the deeds through which the appellant claims convey no title, but, according to the allegations of the amended bill, he has acquired title to the land by adverse possession."
Besides, the deed reference, both in the assessment and in the patent is erroneous. The land which is described in the deed reference is different land entirely, and is located about 350 feet southeast of the property here involved.
(Hn 1) It is apparent, therefore, that the appellant acquired no title under the tax patent to the land which she now claims for the following reasons: (1) The patent shows the lots to be in Section 30 when they are actually in Section 37; (2) the deed reference therein describes entirely different land; and (3) except by the erroneous deed reference, the lots are not shown to be in the town of Ocean Springs. The appellant, therefore, failed to show title in her.
From which it follows that the decree of the court below was correct and must be, and is, affirmed.
Affirmed.
Roberds, P.J., and Hall, Holmes, and Ethridge, JJ., concur.
ON SUGGESTION OF ERROR
February 28, 1955 78 So.2d 342
Appellant expresses concern as to the effect upon land titles in Ocean Springs of our statement in the original opinion that the Culmseig map had not been adopted as the official map of that municipality. That result does not follow. The opinion did not, and does not, hold that titles may not pass by descriptions in accordance with the Culmseig survey provided proper reference is made to that survey. Conceding the practical adoption of that map by the officials and citizens, yet the description here involved does not identify the lots according to that survey.
We have considered the other points raised on the Suggestion of Error but do not think they are well taken.
Suggestion of error overruled.
Hall, Lee, Holmes and Ethridge, JJ., concur.