Martin v. Smith , 140 Miss. 168 ( 1925 )

^* Headnotes 1. Taxation, 37 Cyc., pp. 1051, 1445; 2. Taxation, 37 Cyc., p. 1518; 3. Taxation, 37 Cyc., p. 1518. Appellees H.E. Smith and Dr. L.P. Newsom filed their bill in the chancery court of Pearl River county to quiet and confirm their tax title to lots 37, 38, and 39 in J.H. Moore's addition to the town of Poplarville. Complainants acquired title by virtue of a deed from the sheriff of that county in pursuance of a sale for taxes, the lots in question having been assessed to the appellant, Eugene Martin.

Martin filed his answer, putting in issue the title to the land and the validity of the tax sale, and after the proof was heard the chancellor issued a decree quieting and confirming the title to the said lots of land in the complainants Smith and Newsom.

Upon the taking of the proof it developed that the lands in controversy were assessed in the town of Poplarville as being Moore's addition to said town, omitting the initials "J.H." And it further appeared that there was another subdivision of said town which contained lots 37, 38, and 39 in J.H. Moore's second addition to the town of Poplarville. The chancellor permitted oral testimony showing that the assessment of the lands in Moore's addition to the town of Poplarville to Eugene Martin was the same Martin named as defendant in the bill; also permitted the introduction of a deed from Elmer Wood to the defendant (appellant here) Eugene Martin, Jr., describing the lots as 37, 38, and 39 in the town of Poplarville, Pearl River county, Miss., and known as the chemical charcoal property.

It is claimed that the assessment is void because of the omission of the initials "J.H.," and because there are lots of the same numbers in "J.H. Moore's new addition to the town of Poplarville." It is also urged that the tax deed is void because Mr. Smith testified that these three lots were offered separately and then together on the day of the sale.

The chancellor issued a decree quieting and confirming the title of said lands in and to the complainants, and Martin appealed here.

We are unable to see any ambiguity in the assessment of lots 37, 38, and 39 in Moore's addition to the town of Poplarville, Eugene Martin, owner. We think with the maps and plats of the town of Poplarville any person could, with reasonable certainty, be able to identify the lands described in the assessment and in the tax assessor's deed, because it is certain that the lots 37, 38, and 39, in J.H. Moore's new addition to the town of Poplarville, were not described, nor intended to be described, in the assessment, and likewise in the tax collector's deed; but if there were any doubt as to the identity of the land, the description, "Moore's addition to the town of Poplarville," and the mere omission of the initials "J.H.," would not be such an ambiguity as to render the proceeding void. But under section 4285, Code of 1906 (section 6919, Hemingway's Code), the oral testimony in this character of description, the assessment being based upon a legal survey or plat and so referred to as to be able to refer to that plat and find the land with certainty. The pertinent part of the section of the Code referred to is as follows: "Parol testimony shall always be admissible to apply a description of land on the assessment roll, or in a conveyance for taxes, when such testimony will show what land was assessed and sold, and there is enough in the description on the roll or conveyance to be applied to a particular tract of land by the aid of such testimony."

See Dodds v. Marx, 63 Miss. 443; Standard Drug Co. v.Pierce, 111 Miss. 354, 71 So. 577, which fully sustain complainant's contention.

We think the roll and the deed sufficient in itself without the aid of such evidence, but if there should be any question about it, the roll does furnish "a clue which, when followed by the aid of parol testimony, conducts certainly to the land intended; it is admissible only to apply a description on the roll which must give a start and suggest the course, but being followed will point out the land intended to be assessed."

We do not attach any importance to the effort to confuse "Moore's addition to the town of Poplarville" with the fact that there was in Poplarville lots of the same number in "Moore's second addition."

On the second point, that the statement of the witness that the lots were sold separately and as a whole is sufficient to overturn the recitals in the tax deed, we are unable to perceive any merit in this contention, if, indeed, there was any necessity for the sale as contended for by counsel. If the language of the witness was subject to the construction placed thereon by counsel, then the recitals of the tax deed would not be overturned or defeated thereby.

Affirmed.