Boone v. Wells

Tax Titles. Description. Ambiguity. Chancery pleading and practice. A bill to confirm a tax title is demurrable where the land is described as “ Lot 38, except lots sold to Bussell, Gottschalk Survey, sec. 8, Tp. 8, B. 11,” if the bill fail:- — • (a) To identify the survey as a public or a private one; and (b) To show who “Bussell” was and what lots were sold to him; and (c) To point out where evidence to perfect the description can be found.

From the chancery court of Harrison county. Hon. Thaddeus A. Wood, Chancellor. Boone and another, appellants, were complainants in the court below; Wells and others, appellees, were defendants there. From a decree sustaining defendants, demurrer to the amended bill and dismissing the suit, complainants appealed to the supreme court. The appellants sought confirmation of a tax title .to land. The opinion of the court states the facts and gives the description of the land as shown in the tax deed under which appellants claimed title. The tax collector’s deed cannot be held to be void because of any patent ambiguity. If any part of the description of the land be void, it is the exception of land described in the deed, and not the description of land conveyed therein. And accordingly the deed is valid. McAllister v. Honea, 71 Miss., 256; s.c., 14 South., 264; Spears v. Bobinson, 71 Miss., 774; s.c., 15 South., 111. The amended bill recites that the tax sale was continued by the sheriff, as he was authorized by law to do if necessary, and this accounts for the date of the deed. Code 1892, § 3813; Code 1906, § 4328. If the sheriff adjourned the sale from day to day, as provided by the statute, there was no necessity to recite this fact in the face of the deed. McLemore v. Anderson, 43 South., 848; Bird v. McDonald, 28 South., 847; Brigins v. Chandler, 60 Miss., 862. The description in the deed, “ lot 38, except lots sold Bussell,” is ambiguous, hence the deed is void. And neither the assessment roll nor parol evidence can aid the description. Smith v. Brothers, 86 Miss., 241; s.c., 38 South., 353; Bowers v. Andrews, 52 Miss.,'596. The cases of McAllister v. Monea, 71 Miss., 256; s.c., 14 South., 264, and Spears v. Robinson, 71 Miss., 774; s.c., 15 South., Ill, cited by appellants, are not in point, inasmuch as they are concerned with descriptions in deeds from one individual to another, wherein there is an attempted exception insufficiently described. In the ease at bar, what part of “ lot 38 ” is attempted to be sold, and how much ? What lots, and how many, were sold to Bussell? Who is Bussell? And when were the lots sold? Extraneous evidence is necessary for interpretation of the deed. Ilence the ambiguity is patent, and the deed invalid. Maguire v. Stevens, 42 Miss., 425. The court will take judicial notice that the 5th day of March, 1901, when the sale was made according to the recital of the deed, was not the proper day of that year for making tax sales. The deed thus shows on its face that it was made on an illegal day for making sales, and there is nothing in the deed to show that the sale had been continued from day to day. Unless the deed itself shows that there was a continuance in the sale from day to day, the conveyance is invalid. The cases cited’ by appellants actually support our contentions as to this. See McLemore v. Anderson, 43 South., 878; Meyer v. Peebles, 58 Miss., 634; Bñgins v. Chandler, 60 Miss., 862. Whether the Gottschalk survey, referred to in the tax deed, is a public or private survey cannot be told from the amended bill. Both the original and amended bill fail to show that such survey is in the section and township and range mentioned in the deed, or, in fact, in the county. Hence it was impossible for the sheriff to find it, or for the purchaser to know its situation in order to take possession.