Sims v. Warren

1. Taxation. Assessment. Certainty. Extrinsic evidence. An insufficient description of land on the assessment roll cannot be aided by extrinsic evidence unless the roll itself furnishes the clue, which, followed by the aid of such evidence, will lead to the land intended. This is a constitutional requirement that cannot be dispensed with by legislation. 2. Same. Uncertainty in assessment. Identification. Intention of tax collector. An assessment of land lacking in such certainty of description cannot he aided by evidence as to what the tax collector did, or intended to do, in selling the same for taxes. 3. Tax-title. Description. Patent ambiguity. Case in judgment. On an assessment roll for 1879, a j section of land was assessed : “ 40 a. S. E. i S. 10, T. 8, R. 8, at $2.50 an acre; and 120 a. S. E. ¿ S. 10, T. 8, R. 8, at $1.00 an acre.” Two persons, each owning 40 acres in said quarter, paid taxes, their receipts reading, “40 a. in S. E. Eighty acres were sold for taxes and conveyed as “80 a. of S. E. S. 10, T. 8, R. 8.” Held, incompetent to aid the defective assessment, or apply the insufficient description in the deed, by evidence as to what land those paying intended to pay on, and what the collector intended to sell.

From the chancery court of Itawamba county. HoN. Baxter McFarland, Chancellor. Appellee, Warren, filed the bill- in this cause to confirm a tax-title. The tax collector’s deed conveyed to him “ 80 acres of the S. E. ¿, sec. 10, T. 8, R. 8., in Itawamba county.” The bill alleged that the land intended to be sold and conveyed by this description was the N. of the S. E. £ of said section. The case was before this court at the October term, 1889, and the reader is referred to the report of the case on that appeal for a full statement of the facts. See Sims v. Warren, 67 Miss. 278. On the assessment roll the said S. E. is assessed in two tracts as follows: “40 a. S. E. ‡, sec. 10, T. 8, R. 8,” value $2.50 per acre; and “120 a. S. E. sec. 10, T. 8, R. 8,” value $1.00 per acre. The decree of the chancery court confirming the tax-title was then reversed and cause remanded, this court holding that the description on the face of the assessment roll was insufficient, and that there was no evidence in the record as to what land was intended to be assessed at $1.00 per acre and what at $2.50 per acre, or what 80 acre tract was sold. On the return of the case to the lower court no further testimony was taken, except that of the deputy tax-collector who made the sale. From certain memoranda made by him on the assessment roll at the time the taxes were being collected, he testified that the taxes on the forty acres assessed at $2.50 per acre had been paid by one Cummings, and forty acres of the 120 acres assessed at $1.00 an acre had been paid by the administrator of one Morris. It was shown by these persons what land they owned in the quarter section, and what each thought he was paying on when he paid his taxes. The witness also identified the receipts issued to them as having been written by him at the time that the taxes were paid by them, but in each of the receipts the description is merely, “40 acres of the S. E. sec. 10, T. 8, R. 8.” Opposite the assessment of the 120 acre tract was a memorandum in his hand-writing that forty acres thereof had been paid on, and eighty acres thereof had been advertised to be sold for taxes. The roll contained no entries other than those we have mentioned to identify the parcels assessed. With this additional testimony the cause was set down for final bearing, and the chancery court rendered a decree in favor of complainant and confirmed the tax-title, and from this decree the defendants appeal. As we construe the former opinion in this case, the assessment was held to be void. Not only was there incurable uncertainty in the assessment, but it was impossible to tell which 80-acre parcel of the 160-acre tract was sold. The lower court and counsel for appellee seem to have forgotten that it is necessary to identify not only the land assessed, but the amount of charge or tax that is upon it. In both respects the assessment is void for uncertainty, and cannot be helped by parol testimony. But, assuming for argument that the cause was remanded to allow appellee to prove what land was intended to be assessed, we say that the additional testimony of the deputy tax collector, which was the only testimony in addition to that on the former appeal, wholly fails to identify the land assessed or the charge upon it. Neither he nor Cummings nor the administrator of Morris have thrown any light upon the question as to what part of the 160 acres was assessed at $2.50 and what part at $1.00 per acre. Having failed to show a valid assessment, it was useless to try to show what land was sold, since a valid assessment is a prerequisite of a valid sale. Filed a lengthy brief, which, without citation of authorities, reviewed the former opinion of the supreme court in this cause in the light of the evidence, and made the following points :— 1. The allegation of the bill that the land assessed and sold is the land in controversy, has never been denied in the answer or in argument. A mere inspection of the roll shows what land was intended to be assessed, for the entire quarter section is there assessed by proper subdivisions, 40 acres in one tract at $2.50 per acre,, and 120 acres in the other tract at $1.00 per acre. There is no necessity for parol proof as to what land was intended to be assessed, since the roll itself settles that question. It was not necessary to specify location in the quarter section, for the statute expressly provides that failure to do so shall not vitiate an assessment. The constitutional requisite of ascertainment of value has been met, and there is no difficulty in fixing the amount of the charge on the quarter section. Mere intention of the assessor to locate specifically a tract is not indispensable to valid taxation. His duty and his intention under the law is to assess at a proper value the entire quarter section, and, this having been done, the taxation is fixed and the burden proportioned. 2. An assessment may be valid, and yet a sale under it void, because the land sold cannot be identified. By its opinion this court did not declare the assessment incurably void, but, as I construe it, the uncertainty arose in the sale. The trouble before arose from the fact that there was no evidence to show what particular tract was sold, counsel for appellants having overlooked that essential point. The evidence of the officer who made the sale, taken in connection with the evidence before in the record, has now removed all the uncertainty. By reference to the roll and memoranda made on it, he testifies that the taxes had been paid upon all the land except the 80 acres which were sold, and that the 80 acres in controversy was the land which he intended to sell. It is shown that the 40 acres assessed at $2.50 an acre were paid on, and it follows that the 80 acres sold were a part of the 120-acre tract assessed at the uniform price of $1.00 per acre.