Opinion
No. 38290.
March 3, 1952.
1. Taxation — assessment rolls — description.
An assessment which described city property as Lots one and two of Block 21 according to a named survey although sufficient within itself was rendered thoroughly complete when it pointed out the map book and the page thereof where the map of the named survey was recorded.
2. Tax deeds — tax sales — deed to more than was sold.
When two town lots were legally assessed and validly sold at a tax sale and there was no redemption the fact that the tax deed purported to convey other lots, in addition to the two sold, did not invalidate it as to the two lots correctly embraced therein, and the grantee obtained good title to the two lots, this under the general rule that when a deed purports to convey more land or a greater title than the grantor has it will still be good for what he can lawfully convey.
Headnotes as approved by Lee, J.
APPEAL from the circuit court of Lauderdale County; JESSE H. GRAHAM, Judge.
Parker Williamson, for appellant.
A case of this kind has been before our Court in the case of Tamburo v. Standard Oil Company, 164 Miss. 386, 145 So. 107, in which case the property was assessed as follows: "1 Lot in Sec. 8, T. 14, R.S., desc. in Book 199 page 53, Town of Glenn Allen." Assessed to Jake Stern, and under this description was held sufficient and the tax sale thereunder was held good. Therefore, under the holding in this case, if the assessment had only stated Lots 1 and 2 in Block 21 in Dearman's Survey as shown by Map Book 1 at page 26, the description would be good. But this description is more complete, because it shows the property to be in McBeath's Subdivision on the said Block 21, as shown by Map Book 1 at page 26.
A somewhat similar case is reported from our Court of Martin v. Smith, 140 Miss. 168, 105 So. 494. In that case the testimony showed that there were two Moore's Additions to the Town of Poplarville, and both of such additions contained Lots number 37, 38, and 39. The trial court permitted testimony which showed "that the assessment of the lands in Moore's Addition to the town of Poplarville to Eugene Martin was the same Martin named as the defendant in the bill", and when this property had been in this manner sufficiently identified by oral testimony, the sale was held to be good.
Another case in which the assessment could have been applied to two different surveys is found reported as Belhaven Heights Company v. May, 187 Miss. 101, 192 So. 6.
But if the clerk's deed may be construed as conveying according to the original Dearman's Survey, and not according to the McBeath Subdivision, then Lots 1 and 2 of the original Dearman Survey would also include Lots 1 and 2 of the McBeath Subdivision of the said Block 21 of Dearman's Survey, and this would include the property claimed by the defendant. The law applicable to such case is stated in Vol. 26 of C.J.S. at page 418, as follows: "Ordinarily, a grantee can acquire no greater right than those possessed by his grantor at the time of the grant. However, a deed which purports to convey a greater estate than the grantor has will be void only as to the excess, and will be construed as a conveyance of that which it was in his power to convey."
Bozeman Bozeman, for appellee.
The county court gave judgment for appellant, upon the theory that since Lots 1 and 2 of McBeath's Subdivision was within and part of Lots 1 and 2 of Dearman's Survey, the conveyance of the larger parcel was good as to that part of it, though differently described, which was in fact sold for taxes.
The rule and theory of the county court applies to conveyances between individuals, perhaps, but does not apply to tax deeds; because a tax sale is a sale in invitum, and involves no aggregate mentum, which the instrument has mistaken. Bowers v. Andrews, 52 Miss. 603.
The tax deed is void because of variance between description on assessment roll and description in the tax deed. Gibbs v. Hall, 38 So. 369.
Neither county court nor circuit court, being courts of law, had any right to reform the tax deed so as to make it conform to the assessment roll. McQueen v. Bush, 76 Miss. 283.
Mrs. Mae Williamson instituted in the county court against Louvenia DeBruce an action of unlawful entry and detainer for the possession of a parcel of land as therein described. The county court rendered judgment for her. On appeal, the circuit court reversed the judgment of the county court, and rendered a judgment for Louvenia DeBruce. Mrs. Williamson appeals.
The parcel of land consists of Lots 1 and 2 of J.M. McBeath's Subdivision of Block 21 of Dearman's Survey, recorded in Map Book 1, p. 26, in the City of Meridian. It was assessed to Alice Fant for the taxes of 1946. The taxes were not paid. On September 15, 1947, the tax collector sold it to L.G. Everitt. There was no redemption. On September 19, 1949, the chancery clerk executed and delivered a deed to Everitt, who, in turn, executed and delivered a deed to Mrs. Williamson three days later. However, in the deed from the chancery clerk to Everitt, the land was described as "Lots one and two of Block 21 of and according to Dearman's survey of the City of Meridian, * * *." A part of the description, "of J.M. McBeath's Subdivision" was omitted. The same omission appeared in the deed from Everitt to Mrs. Williamson.
The proof showed that Block 21 of the original Dearman survey was divided into four lots of equal size. Lots 1 and 2 thereof embrace the whole north half of the block. When J.M. McBeath acquired this property, he replatted it and divided it into 32 lots. Lots 1 and 2 of his subdivision comprised 69 feet north and south by 125 feet east and west, and was situated in the northeast corner of the block, and in Lot 1 of the original Dearman survey.
(Hn 1) Obviously the description on the assessment roll was good. It was sufficient within itself. In addition, it pointed out where the survey was recorded. Both modes for defining identity and fixing locality were employed: a complete description, and reference to the map, which, when consulted, indicated the property. Bowers v. Andrews, 52 Miss. 596; Martin v. Smith, 140 Miss. 168, 105 So. 494; Tamburo v. Standard Oil Co., 164 Miss. 386, 145 So. 107; Belhaven Heights Co. v. May, 187 Miss. 101, 192 So. 6.
(Hn 2) The parcel of land, correctly described on the assessment roll, was lawfully sold according to that assessment. The description in the clerk's deed embraced the parcel of land, and also other land. It merely conveyed too much. It showed that the property had not been redeemed, and, if not void, was good to confer the right to possession of that part rightfully conveyed. Section 9958, Code of 1942; Seward v. Dogan, 198 Miss. 419, 21 So.2d 292.
The question for decision, therefore, is whether or not the clerk's deed was void because it embraced more land than could rightfully be conveyed.
In 26 C.J.S., Deeds, Sec. 104(b), page 382, the rule is announced as follows: "A deed purporting to convey a greater title, or more land, than the grantor possesses or owns conveys such title and land as he actually possesses or owns. * * * So a deed for more land than the grantor owns operates to convey so much as he can lawfully convey. On the other hand, the grantee acquires nothing more than the grantor owns and can convey, particularly where the title of grantor appears in deeds of record."
Everitt had bought this particular parcel of land. Unless it was redeemed, he was entitled to a deed. The error of the clerk, in including more property than he was authorized to convey, did not defeat the validity of the conveyance as to that part rightfully conveyed. The clerk not only had the right, but he was also under the duty to convey the parcel of land which had actually been sold. Under such circumstances, appellee has no right to complain that the clerk conveyed other land in which she was not interested.
The foregoing announcement is not in conflict with Gibbs v. Hall, Miss., 38 So. 369, where it was held that a tax collector does not have the power to remedy a defective description on the assessment roll by voluntarily inserting a different description in the deed which he executes to a purchaser. The description, in the case here, was not defective at all, either as assessed or as sold.
Neither is the principle here involved out of harmony with McQueen v. Bush, 76 Miss. 283, 24 So. 194, where equity refused to correct or remedy a tax title based on an assessment utterly void for uncertainty. In the case here, the question of reformation is not involved.
It follows therefore that the judgment of the circuit court should be, and is, reversed, and that the judgment of the county court awarding possession to appellant should be, and is, reinstated.
Reversed, and judgment here reinstating and affirming the judgment of the County Court.
Roberds, Alexander, Arrington, and Ethridge, JJ., concur.