Opinion
No. 34266.
October 28, 1940.
1. TAXATION.
The seal of chancery clerk is essential to validity of tax deed.
2. TAXATION.
Where tax purchaser never applied to court of chancery for issuance of tax deed, purchaser or his assignee had no rights enforceable in a suit to cancel claims in favor of purchaser or his assignee (Code 1930, sec. 3265).
3. TAXATION.
In suit to cancel claims in favor of assignee of tax purchaser, bill of complaint should have alleged that title had passed out of United States government, giving the date which could have been obtained from the department of government dealing with public lands (Code 1930, sec. 3265).
4. TAXATION.
In suit to cancel claims in favor of assignee of tax purchaser, evidence failed to establish what land was attempted to be sold for delinquent taxes with sufficient certainty to uphold sale, even if tax roll was admissible to aid in description, where it was not shown just what land constituted the 84 acres attempted to be sold out of total of 160 acres.
5. TAXATION.
In suit to confirm title, if tax deed is capable of being made certain by parol proof, tax purchaser must furnish such proof, so that court can see for a certainty what lands were embraced in those imperfect or void descriptions.
APPEAL from the chancery court of Webster county; HON. JAS. A. FINLEY, Chancellor.
T.W. Scott and Alex McKeigney, Jr., both of Eupora, for appellant.
It is on the one point — that the chancery clerk's deed as provided for in Section 3273 of the Code of 1930 was never made — that the court below has rendered its decree holding that the title to the land in controversy here was imperfect. We respectfully submit that the lower court was in error.
The court has relied solely upon the case of Hatchett v. Thompson, 165 So. 110. However, there appears to be an important distinction between the instant case and the Hatchett case. For in that case, it seems that the complainant was relying solely upon a tax deed executed to him by the chancery clerk of Clay County, Mississippi, in asserting his title. Naturally, where complainant relied on the tax deed alone, and the seal of the chancery clerk was not affixed thereto as provided by statute, then the deed would be imperfect and no title would be conveyed.
In the instant case, appellant is not relying upon the deed of the chancery clerk, and it is most respectfully submitted that it does not follow a fortiori that such a conveyance from the chancery clerk is necessary to perfect title in a purchaser of land at a tax sale.
The appellant in the instant case is relying upon the title of the Corinth State Bank and the subsequent deed made to him on behalf of said bank by the State Banking Department of Mississippi, the said title of the Corinth State Bank having been obtained by the purchase at a legal tax sale under the provisions of the Mississippi statutes.
By the statutes of our state it is expressly provided that the lists of lands sold to purchasers at tax sales when transmitted by the sheriff to the chancery clerk "shall vest in the state or the individual purchasers thereof a perfect title to the land sold for taxes, but without the right of possession and subject to the right of redemption . . ." The statute does not require that a deed be executed to vest title. The filing of the "lists" vests title according to the statute.
Sec. 3256, Code of 1930.
Since the statute expressly sets forth that such lists vest a perfect title in the purchaser, and that such lists were made in the present case has not been denied, then it seems that appellee has no right to exercise a claim to the land in controversy here, for she failed to redeem said land, and it necessarily follows, that if the sheriff's lists of lands when certified to the chancery clerk vest a perfect title without the right of possession and subject to the right of redemption and no redemption is subsequently made, then the original owner, here the appellee, cannot assert after the period of redemption has expired that she has a claim to the land.
There is no mandatory feature in Section 3273 in regard to the deed of the chancery clerk to the purchaser. Nor is there any time limit to the statute, except that the deed is to be made "on demand," not "shall be made," after the period for redemption has expired.
Under the provisions of Section 3273, the statute relied upon by the learned court below in rendering its decree, the deed from the chancery clerk cannot be given until after the period for redemption has expired. How, then, can the appellee, who at no time offered to redeem the land from the sale for 1930 taxes in June, 1931 exercise a claim to said land which she so plainly abandoned to the purchaser at the tax sale?
In the case of Roebuck v. Bailey, 166 So. 358, the Supreme Court of this state held that the sheriff's lists and receipts to purchaser were sufficient to convey title to land purchased at a sheriff's sale. Therefore, we respectfully submit that this case is more strikingly similar to the case here than the Hatchett case, and we respectfully submit that the decree of the lower court should be reversed with judgment here for appellant.
we cannot agree with the argument of counsel for appellee that the description in the assessment is insufficient to meet the requirements of the law, because the description is evidently of such clear and definite character as to make the location of the land easily ascertainable by parol evidence.
Secs. 3149 and 3151, Code of 1930.
The description in the instant case is not only one that would be good on an assessment roll, but it is a description that would be good in a deed conveying land, because it has always been recognized that the boundaries of a tract of land by streams, public roads, and railroads are sufficiently definite as to constitute a good description in a deed, and certainly if such description is good in a deed it is good on an assessment roll.
Tamburo v. Standard Oil Co., 145 So. 107; Mixon v. Clevenger, 20 So. 149.
S.E. Turner, of Carrollton, and V.D. Rowe and H.T. Holmes, both of Winona, for appellee.
The assessment of the land was void and would not support a sale based thereon because the description was vague, indefinite, and uncertain.
Talmadge et al. v. Seward, 155 Miss. 580, 124 So. 791.
Appellee submits that it was a matter of impossibility for the sheriff to have divided this 84-acre tract, as the same is assessed, into forty-acre tracts and sell the same according to law. And appellee further submits that the assessment is void for uncertainity, that the sheriff and tax collector could not have possibly sold it according to law, and that the attempted sale thereof must fail.
If the assessed description of this land would support a sale, appellee submits that the Corinth State Bank never acquired title to the land because it never secured a deed from the chancery clerk to same. The answer to this proposition depends on the construction of Sections 3256 and 3273 of the Mississippi Code of 1930.
Considering the plain, unambiguous terms of the two sections of the Code just referred to, at the very threshold of this case, appellee submits that appellant has no standing in court suing for confirmation of title and possession of this land and is without right to bring this suit until he produces a deed to this land from the chancery clerk. The language of the statute is clear that the filing of the list does not carry the right of possession and the execution of the deed by the chancery clerk after the expiration of the period of redemption carries, for the first time, the right of possession. And until the deed is executed the right of possession does not pass. The question as to whether appellant could now go and have the chancery clerk execute such a deed is not before the court on this appeal; but, granting that he could now have such a deed executed, appellant is without right to bring this suit until he does secure such a deed.
We submit that the list of lands sold to individuals when filed with the clerk gives the individual purchasers only a mere claim — a bare, naked and imperfect title — to the lands sold and that that claim or color of title has life breathed into it and becomes a good title when, and only when, the deed thereto is executed by the chancery clerk in accordance with Section 3273.
Appellee submits that the proposition that a conveyance from the clerk to the individual purchaser is absolutely necessary in order for any title to pass to the purchaser is settled law in this state.
Hatchett et al. v. Thompson, 165 So. 110, 174 Miss. 502.
There is no conflict between the case of Roebuck v. Bailey et al., 166 So. 358, 176 Miss. 234, and the Hatchett case. The Roebuck case holds that a tax deed based on a defective list is a good deed; the Hatchett case holds that a deed is necessary, regardless of the list. Both cases recognized and give validity to Sections 3256 and 3273 of the Code of 1930.
The appellant, Sam J. Johnson, complainant in the court below, brought a suit against appellee in the Chancery Court of Webster county, for the cancellation of all claims of title to certain lands described as, "All land in the SE 1/4 of Section 1, Township 19, Range 10 East, that lies south of the Columbus and Greenville railroad right-of-way, and east of Choctaw and Webster public road and north of Webster-Choctaw drainage canal except two acres in the northeast corner."
It is alleged that on the 4th day of May, 1930, the above-described land was assessed for taxes in Webster county for the years 1930 and 1931, being assessed to Mrs. A.L. Bridges, who at that time owned a life estate in the lands; that before the 1930 tax became due Mrs. A.L. Bridges died, and title to the said land became vested in the defendant. It was alleged that these taxes were not paid on the first day of February, 1931, thereby became delinquent, and on the 4th of May, 1931, the land was advertised for sale, with other lands, for taxes by order of the board of supervisors of the county, the lands not having been sold at the regular time for selling delinquent lands; and that on the first day of June, 1931, the sheriff and tax collector sold the lands in question, as provided by law. The State Bank of Corinth, Mississippi, was the highest bidder, in the sum of $60.48; and it is alleged that the sheriff and tax collector then filed his list of lands sold to individuals for such taxes in the office of the chancery clerk, as provided by law, showing the sale of the land with other lands in the southeast quarter, to the Corinth State Bank. It was alleged that the filing of the said list by the tax collector vested the title to these lands in said bank, subject to the right of redemption by the defendant within two years from the date of the sale, without the right of possession thereof until the expiration of such period.
It is alleged that on the 2nd day of February, 1932, the taxes due on these and other lands assessed therewith were not paid, and again became delinquent and subject to sale for the 1931 taxes; that on May 2, 1932, as provided by law the sheriff and tax collector advertised these lands for sale, to be held June 1st, in the Webster Progress, a newspaper published and having a general circulation in Webster county; on which date the lands being offered for sale and no bidders appearing, they were struck off to the state; and that on the 1st of June, 1933, at the expiration of the two years allowed for redemption, the title became vested in the Corinth State Bank, subject to the sale of said lands to the state of Mississippi. And on the 22nd of February, 1935, the Banking Department of the state, acting for the bank, executed and delivered to the complainant, Sam J. Johnson, a deed to these lands for the sum of $50; whereupon the complainant filed a petition with the clerk of the Chancery Court, under the provisions of section 3265 of the Code, praying that said land be separated from other lands assessed with it, and that he be allowed to redeem it from the sale made to the state for the 1931 taxes — which the chancery clerk did, after giving the required notice, fixing the value on each part, and allowing the complainant to redeem the land from the tax sale to the state, by paying to the clerk the sum of $130.13 therefor, the amount due to the state for the redemption of said land.
It is alleged that by virtue of his deed from the bank, and the redemption of the land from the state, Sam J. Johnson became and now is, the owner in fee simple of said lands. He averred that because of the destruction of records of Webster county it was impossible to deraign title to these lands, but that since he and the defendant claimed from a common source it was unnecessary to fully deraign title; and he further stated that the United States government does not have or claim title thereto. And the complainant prayed for cancellation of the title and claim of appellee to said lands.
The list of lands introduced as having been sold on June 1, 1931 is as follows: "Mrs. A.L. Bridges all SE 1/4 S.R.R., except 2 a in NE corner ex 16 A West Public R. Sec. 1 Twp. 19, R. 10 No. acres 84 State Tax $3.60 County Tax $35.35 Clerk's Fees .50 Printer's Fees .40 Sheriff's Cost Deed $13.16 Damage $60.48. Filed Feb. 10, 1938. (Signed) O.F. Carroll, Clerk." This was made an exhibit to the bill.
Notice to Mrs. Chaney Bridges Langston was given as follows: "You will take notice that Sam J. Johnson has filed a petition with me under the provisions of section 3265 Mississippi Code of 1930 stating that he was the owner of the land in Webster county, Mississippi, described as all land in the SE 1/4 of Section 1 Township 19 Range 10 East that lies South of Columbus Greenville Railroad and east of Choctaw-Webster Public road and north of Webster Choctaw Drainage Canal except 2 acres in northeast corner and asking that the value of said land and the amount of taxes due thereon be apportioned under the provisions of said section 3265 Code of 1930 between it and the following described land with which it was sold to the State of Mississippi on the 6th day of June 1932 for the taxes of 1931 in solido to wit: All land in SE 1/4 of Section 1 Township 19, Range 10 East that lies south of Webster-Choctaw Drainage Canal and east of Choctaw-Webster public road. I have fixed Monday April 22d 1935, at 10 o'clock A.M. for the hearing of said petition and am sending you this notice as one of the heirs-at-law of Mrs. A.L. Bridges, deceased, to whom said land was assessed and you can be present at said hearing and present such objection as you may have to said apportionment if you desire. (Signed) W.A. Peeples, Chancery Clerk, Webster County, Miss."
A notice to strike the bill was filed, because of failure to comply with Rule 10, Rules of Practice and Procedure in the Chancery Court, adopted by the Chancellor's Association September 3, 1936, "In that the said bill of complaint does not set forth the facts on which the complainant relies for relief in separate paragraphs numbered consecutively."
The answer denied the allegations in substance, but admitted that the defendant is now claiming title to the land in question by virtue of her former ownership, claiming that she was then in possession, and denying that the complainant is entitled to relief.
The Corinth State Bank never applied to the clerk for the issuance of a deed, and no deed was ever issued by the chancery clerk either to the bank or to the assignee, the complainant. It appears from the evidence in the case that Sam J. Johnson rented the land in the year 1932 from an agent of the appellee, and remained in possession of the land for the years 1933 and 1934, continuing in possession during 1935; consequently he was in possession thereof at the time he purchased it from the Mississippi State Banking Department, acting for the Corinth State Bank.
When the petition of Sam J. Johnson to redeem the land in question, and for an appraisement of value, was filed, Mrs. Langston sent a check and offered to redeem the land from the tax sales — which was rejected.
The Chancellor held that under the case of Hatchett v. Thompson, 174 Miss. 502, 165 So. 110, inasmuch as no deed was ever delivered by the clerk to the Corinth State Bank, or to any other, the complainant had failed to make a case which entitled him to relief. In Hatchett v. Thompson, supra, the Court held that the seal of the chancery clerk was essential to the validity of the tax deed in a suit to cancel claims in favor of the tax purchaser; and the Chancellor held that if there is no deed at all the complainant had no rights enforcible in a proceeding to cancel.
We think this case is decisive of the right of the complainant, and that the decree was proper for the reason given. However, there are other defects apparent on the record which would also prevent relief being granted in this case. The bill should allege that the title had passed out of the United States Government, giving the date which can always be obtained from the department of the Government dealing with public lands; and also while the description on the tax roll might have been aided by proper proof, it is not valid on its face, and it would be impossible from the description given, and proof offered, to show just what land constituted the 84 acres lot, and attempted to be sold, out of the total of 160 acres. There is no aid in this description; if the roll is admissible to supply it, how much of the land was embraced in the 160 acres, or where is the railroad described in the bill, and the public road there described with reference to this land, and how much of the land lay on either side of such roads; and it consequently does not render certain the insufficiency of the description contained in the roll, nor does it enable us now to determine from anything in the record what exact description of lands was embraced in this assessment and sale.
Of course, in a suit to confirm title, if the tax deed is capable of being made certain by parol proof, it is required that this proof be furnished, so that the court can see for a certainty what lands were embraced in those imperfect or void descriptions.
It is not now necessary, in the state of this record, to determine the effect of the tenancy of Sam J. Johnson, and his possession thereunder at the time he acquired the title, or whether such requirement operated for the benefit of the landlord.
For the reasons set forth the decree of the Chancellor is affirmed.
Affirmed.