Opinion
No. 36002.
January 28, 1946.
1. TAXATION.
A tax sale to the state of land described as the NE 1/4 of the NE 1/4 "less 2 a" in a designated section, township, and range was illegal because description was indefinite, in absence of aid and clarification by other record evidence (Code 1942, sec. 1317).
2. TAXATION.
Where tax sale to state was invalid because description of land was indefinite, title could not be quieted in purchaser from state, as between purchaser and state, though state alone was made a party and state conveyed by patent only what it got under the tax sale (Code 1942, sec. 1317).
3. APPEAL AND ERROR.
Where chancellor properly held that tax sale to state was invalid because description was indefinite, but after the case was tried and appeal briefs were filed, a decision in another case was rendered authorizing the use of record evidence such as deed records and assessment rolls to clarify description in tax sale and where state had received and retained purchase money under patent to purchaser who sought to quiet title in himself, the Supreme Court would not enter final decree but would affirm decree of chancellor on the record and remand the cause to permit purchaser to show if possible under new decision that tax sale was valid (Code 1942, sec. 1317).
APPEAL from the chancery court of Marion county, HON. LESTER CLARK, Chancellor.
Hall Hall and Bernard Callendar, all of Columbia, for appellant.
A description of land in this form has invariably been held to be good by this Court, and it has been pointed out that the description "NE 1/4 of NE 1/4" is definite and certain and sufficient to pass title, and that the only indefinite part of the description is the exception of two acres.
McAllister v. Honea, 71 Miss. 256, 259, 14 So. 264; Beasley v. Beasley, 177 Miss. 522, 171 So. 680; Hatchett v. Thompson, 174 Miss. 502, 165 So. 110.
Under Section 1317, Code of 1942, it was the duty of the chancellor to validate and confirm appellant's title. Sections 1315 through 1322, Code of 1942, authorize the institution of suit against the state by a patentee from the state, or his vendee, of lands forfeited to the state for non-payment of taxes, to have such title or interest confirmed and quieted. Under Section 1317, it is the mandatory duty of the chancery court to enter a decree validating and perfecting the title of said land, unless it shall appear to the court and the court shall find as a fact that (1) the state has not acquired title to said land by virtue of the tax sale; or (2) title was divested out of the state without payment of purchase price; or (3) title was divested out of the state by reason of actual fraud on the part of the patentee or his representatives. Items (2) and (3) are eliminated from consideration as justification for the chancellor's refusal to validate title to the land, because he found specifically in his decree that the state received "the full fair value of said land" and that "no fraud was perpetrated upon the defendant by the said Robert Johnson or anyone else in connection with the issuance of said patent." The decree provides that "the said tax sale and certification thereof was in all respects legal and regular." As we have already pointed out, this Court has held that descriptions of land similar to the one here involved are legal and valid and sufficient to pass title. Hence, the state did acquire title to the land by virtue of the tax sale, and it was the duty of the chancery court to validate and perfect the title.
The principles regarding certainty and definiteness of land descriptions apply alike to tax deeds and to deeds from individual vendees, and applying these principles to the case at bar, the court will find the description to be legally sufficient to pass the title to the land.
Greek L. Rice, Attorney General, by W.B. Fontaine, Assistant Attorney General for appellee.
The description is indefinite, vague and uncertain.
Dingey v. Paxton, 60 Miss. 1038; Smith v. Brothers, 86 Miss. 241, 38 So. 353; Carr v. Barton, 173 Miss. 662, 162 So. 172; Bowers v. Andrews, 52 Miss. 596.
The authorities cited in appellant's brief are not in point and do not control the legal question involved in this suit for the reason that such cases so cited deal with the rights of individual contracting parties. The case at bar deals strictly with a tax title description, to-wit: NE 1/4 of NE 1/4 less 2 acres in Section 13, Township 2 North, Range 17 W. Property assessed for taxation must be described with certainty and definiteness, whereas the rule is different regarding property conveyed by deeds between individuals as shown by the authorities cited by appellant.
The land in question was described in the tax sale to the state and in a patent from the state as the NE 1/4 of the NE 1/4 "less 2 a" in a designated section, township, and range. Simmons, claiming under the patent, filed the bill herein to quiet, confirm, and validate his title to said lands, making the state alone a party respondent to the bill, the proceeding being under Section 1317, Code 1942. The chancellor held that the foregoing description was indefinite and for that reason the tax sale to the state was void, although he also found that in all other respects the sale and the issuance of the patent were regular and valid. The question is whether the description as above set out rendered the tax sale to the state illegal. Appellant contends that the part which is indefinite is the excepted two acres, and that this does not render the description uncertain and illegal. The state contends that while that is true as between individuals entering into a voluntary agreement, it is not the case where a sale is in invitum and property is taken from the owner against his will, as in a tax sale. This court has recognized that distinction (although the writer thinks the distinction is not well taken) and the cases of Carr v. Barton et al., 173 Miss. 662, 162 So. 172 and Jefferson et al. v. Walker et al., 24 So.2d 343 not yet reported in State Reports, support the contention of the state and the holding of the chancellor.
Appellant further contends that since the state alone is a party respondent and the state conveyed by the patent what it got under the tax sale, that as between appellant and the state the title of appellant should be quieted and confirmed. Section 1317, Code 1942, imposes on the chancellor the duty to validate the title under the patent unless it shall appear to the court and the court shall find as a fact that the state (1) did not acquire title to the land by virtue of the tax sale, or (2) the title was divested out of the state without payment of the purchase price, or (3) such title was divested as a result of actual fraud. Since the chancellor held on the face of this record the state acquired no title, such finding precluded the right of the chancellor to validate the title of appellant on the record as now made.
However, the Jefferson case, supra, further held that record evidence, such as the deed records and assessment rolls, are competent in aid and clarification of the description in the tax sale, and it may be that the description here involved can be perfected by this method and the title of the state, and consequently that of appellant under the patent from the state, shown to be good. And since the Jefferson case was decided after the case at bar was tried and after the briefs herein were filed, and since the state has received and retains the purchase money under the patent, we think it only just and equitable that a final decree should not be entered here, but that the decree of the chancellor should be affirmed on this record and the cause remanded for opportunity to appellant to show, if he can, under the permissible method set out in the Jefferson case, that the tax sale was valid.
Affirmed and remanded.