MEEK v. FARMERS' COOPERATIVE (AAL)

Citation Codes

Equivalent Citations

citation codes

Docket Number

No. 38564.

Judges

ARRINGTON, J.

See more information ...

Smart Summary

Please sign up to generate summary.

MEEK v. FARMERS' COOPERATIVE (AAL).

W.B. Meek and Fant Bush, for appellant.

I. The description "Lot 2, Block 20, Adams Survey, Town of Eupora" was adequate to convey title.

We submit that the averments in the answer as well as those in the cross bill appearing in the record which the cross complainant abandoned show in themselves and even in the absence of testimony that the description Lot 2, Block 20, Adams Survey of the town of Eupora is a description by which precisely described land has been commonly known and has been conveyed and further that it meets all the requirements of a description because the defendant itself receiving the land under the description Lot 2, Block 20, Adams Survey of the town of Eupora has been able to place in its answer a precise and complete and detailed metes and bounds description of "Lot 2, Block 20, Adams Survey of the town of Eupora." Jones v. Hickson, 204 Miss. 373, 37 So.2d 625; Raines v. Baird, 84 Miss. 807, 37 So. 458; Kyle v. Rhodes, 71 Miss. 487, 15 So. 40; 18 C.J., Deeds, Secs. 62 (2) Sufficiency (A) and 63 (B) pp. 180-181; 26 C.J.S., Deeds, Sec. 30 (G), p. 219.

It would, we submit, be inconceivable to hold that because the map of a town or a survey of a town becomes largely illegible with the passage of time all titles resting upon descriptions based on the survey reflected by the map suddenly become void. And in this connection we point out that the record shows that when the land was sold to the State for taxes the map itself was in good condition, was legible. And again we invite the attention of the Court to the fact reflected by the answer itself of the defendant, that the description according to the Adams Survey of the town of Eupora which was contained in the deed to the defendant was sufficiently definite and certain at the time of the trial of this case to permit the defendant to set forth in his answer a minute metes and bounds surveyor's description of Lot 2, Block 20, of the Adams Survey.

II. Where a conveyance describes land by lot and block numbers of a survey resort may be had, if necessary, to extrinsic evidence to locate the property and define its boundaries.

It is universally held that where a description in a deed refers to a plat or survey the deed is not void merely because the plat of the survey is incomplete, unacknowledged, unrecorded or even invalid. 26 C.J.S. 219, Sec. 30 (f); 16 Am. Jur. 594, Sec. 274.

Our Court has said that parol testimony is admissible to give identity and locality to the land granted and indeed in explanation of a map if the map itself could not be produced. Doe ex d Pool v. Myers, et al., 13 S. M. 466; 16 Am. Jur. 585, Sec. 262; Hensley v. Sage, (Okla.), 154 P.2d 577; 26 C.J.S. 212 Sec. 30 (a); Wright v. Sullivan, 207 Miss. 249, 42 So.2d 185.

III. The sale to the State for delinquent taxes was valid.

The trustee in bankruptcy takes the bankrupt's property subject to valid liens, including tax liens. The trustee in bankruptcy may elect to sell the land subject to the tax lien or to sell it free and clear of the lien. Furthermore, the trustee in bankruptcy is under no duty to administer property subject to a lien unless it is to the interest of the general creditor so to do. North Star Ice and Coal Co., 252 Fed. 301; 11 U.S.C.A., Bankruptcy, 104; Meeks v. Whatley, 48 Miss. 337.

Moreover, it is well settled that the trustee may sell the property subject to the tax lien and that a sale of the land by the trustee in bankruptcy does not divest the lien of the State for taxes. In re: Gerry, 112 Fed. 958.

Nor does the bankruptcy law impair or in any manner supersede the laws for the collection of the taxes. U.S. v. Herron, 87 U.S. 251, 20 Wall 251, 22 L.Ed. 275.

R.P. Sugg and Ward Ward, for appellee.

Appellant can prove her title and right to confirmation solely by her tax deed, and is confined to the language contained within the four corners of that instrument, together with such descriptive matter as is clearly made a part of the deed by reference. As stated in Carr v. Barton, 173 Miss. 662, 162 So. 172, after an exhaustive review of the authorities on this phase of construction: "We have set forth and summarized these holdings for the purpose of showing that the rule has always been in this state that the assessment must contain sufficient description themselves on their face, or point to where such information may be obtained."

In the case at bar the assessment roll and the tax deed contain no description whatever, independent of its reference to the Adams Survey. Hence it became clearly incumbent upon appellant to produce an Adams Survey that delineates location, measurements, directional lines, starting point, and boundary descriptions, from which a qualified person could go directly to the property and point it out with certainty and accuracy of detail. This appellant has not done.

Appellee contends that the map, aside from its age and deteriorated condition, still shows that it has never contained sufficient data from which the starting point, the length and directions of the boundary lines, and other such information concerning such lot, could be ascertained. And that therefore the map, together with the tax deed and its reference to the survey, does not, in the aggregate, offer the descriptive matter vitally necessary for locating the lot in question and fixing with certainty its location and boundaries, and that it is not even definitely identified, either from its face or by other proof, to be the Adams Survey.

The tax deed to appellant is dated September 24, 1946. This deed must furnish the clue within itself to any extraneous proof offered to aid in establishing the description. Seward v. Carter, 190 Miss. 354, 200 So. 248. The only clue offered in this deed is the Adams Survey. The only proof presented by appellant concerning the Adams Survey is the purported map, which does not show on its face that it is the Adams Survey and which does not in itself describe the lot in question.

The document in question purported to be a copy of the alleged Adams Survey. There is no proof of loss of the original, if any, of the time, place and circumstances of making the copy; as to the identity of the person who made the copy; or even that it is an accurate and correct copy of anything in general, or of an original Adams Survey in particular. It was first seen by appellant in the early 1930's, only about twenty years ago, and could not possibly be anything more than a private map, plat or sketch, owned by the appellant, and bearing none of the essential characteristics of either an ancient document or of an authenticated copy of a lost original document. Upon the objection to the introduction of this document, appellant made no effort to show the purposes for which it was being offered, or to supply any proof tending to qualify it for admission, and it is therefore not properly before this Court on appeal.

II. Tax sale of bankrupt's property.

It is well settled that a bankruptcy court has exclusive jurisdiction of the bankrupt's property. 8 C.J.S. p. 436, par. 25.

This exclusive jurisdiction of the bankruptcy courts applies to proceedings to enforce tax liens. 6 Am. Jur. 603.

III. Conclusion.

Our Court has consistently held that the clue to aid a description, as in the case at bar, must be furnished by the official map. Lott v. Rouse, 147 Miss. 802, 111 So. 838.

(2) The second assignment of error is the exclusion from evidence of a private map offered by appellant. Appellant did not preserve this alleged error for review as required by a long line of cases, including Miss. Central R.R. Co. v. Robinson, 106 Miss. 896, 64 So. 838, and cases following this holding cited in Mississippi Digest.

(3) The third assignment of error challenges the propriety of the trial court in sustaining the motion of the appellee to exclude the evidence of appellant and in entering a decree for the appellee. The court was correct in its holding for the reason that appellant wholly failed to prove either the existence of a map of the Adams Survey or a copy of the same, and failed to prove the location of the lot in question.

"The test must always be whether, after the rejection of the erroneous description, enough remains to properly identify the thing conveyed or referred to." Pegram v. Newman, 54 Miss. 612.

It was incumbent upon appellant to supply proof to establish a legal description of the property, which she has completely failed to do.

1. Equity procedure — motion to exclude complainant's evidence — effect of.

On a motion to exclude the evidence for the complainant all the facts which complainant's evidence fairly tends to establish together with all the reasonable inferences to be deduced therefrom plus the admissions made of record by the parties and pleadings should be assumed to be true.

2. Tax deeds — description — parol testimony.

Where the description in a tax deed is good on its face, parol testimony is competent in applying the description to a particular tract of land.

3. Tax deeds — maps of survey of town lots and copy thereof — when admissible.

Where a town lot had been sold at a tax sale, and the tax deed made, according to a map in the office of the clerk of the town, which was legible at the time of the sale and was then in general use, and from which a copy had been made while still legible and the copy had been used by various people to check lots, both the original map, although faded, and the copy were admissible for whatever they were worth.

4. Tax title — confirmation — admissions in defendant's answer.

In a suit to confirm a tax title defended on the ground that the description in the tax deed was insufficient, admissions in the defendant's answer which served to definitely locate the town lot in controversy as the same lot sold for taxes and conveyed by the tax deed, would be considered as conclusive of any doubt.

5. Tax sales — trustee in bankruptcy.

The trustee in bankruptcy may elect to pay the ad valorem taxes on land of the bankrupt or instead he may sell it subject to the taxes.

Headnotes as approved by Arrington, J.

ARRINGTON, J.

The appellant, Mrs. Christine B. Meek, filed bill in the Chancery Court of Webster County, Mississippi, against The Farmers' Cooperative (AAL) of Eupora, Mississippi, to confirm a tax title to a tract of land described as Lot 2, Block 20, Adams Survey, Town of Eupora. This lot sold to the State of Mississippi on June 1, 1931, for the delinquent county and state taxes for the year 1930, having been assessed to J.W. Buchanan, who had acquired said lot by warranty deed in 1904. Mrs. Meek acquired her title by state tax patent in 1946. Appellee also deraigns its title from J.W. Buchanan, it appearing from the pleadings and the evidence that J.W. Buchanan had been adjudged a bankrupt prior to the tax sale and that the assets of Buchanan were in the hands of the trustee in bankruptcy at the time of the tax sale. The predecessors in title of appellee had acquired their title from the trustee in bankruptcy who had sold the lot subject to all taxes, city, county, and state. Although appellee acquired its title by the same description that appellant acquired her title, it contends that the tax title is invalid because the description is void for uncertainty in that there exists no official map or plat of record from which a determination can be made of the location, area, dimension, shape, size, or description of the property involved. Appellee further contends that the sheriff had no right to sell the lot for taxes while it was in the hands of the trustee in bankruptcy.

Appellee admits in its answer that it is in possession of a lot or parcel of land situated in the Town of Eupora, the possession of which it acquired at the time of the deliverance to it of a warranty deed and that said property is often referred to as Lot 2, Block 20, Adams Survey, and proceeds to give a metes and bounds description which it says is the correct description of the lot. It was stipulated in the record that all the deeds and patents referred to in the original bill of complaint, except patent from the United States of America, described the property as Lot 2, Block 20, Adams Survey, and that all the instruments in chain of title of appellee also describe the property as being Lot 2, Block 20, Adams Survey. By referring to these deeds we find that the lot has been described as Lot 2, Block 20, Adams Survey, since 1891. It further appears from the evidence that a large part of the Town of Eupora is at the present time assessed according to the Adams Survey and that the appellee paid taxes on said lot for the years 1949 and 1950 under the description of Lot 2, Block 20, Adams Survey.

The appellant, in addition to proving the allegations of her bill with reference to the assessment and sale, offered in evidence the map of the Town of Eupora, which was in use at the time of the tax sale in 1931. L.W. Harpole, the mayor, testified that this map had been used to identify lots according to the Adams Survey and testified that the largest portion of the business district was assessed according to the Adams Survey; that the map has faded out now but in its better days had been used to identify lots in the Town of Eupora — that it was "all we had to go by."

Mrs. T.B. Foard, who had been town clerk for 23 years, testified that she had seen the map when it was in good condition and when lots in the Town of Eupora could be identified by reference to it, that this map was generally used to determine the location of lots in that municipality. She further testified that they were using the map in 1930, and at that time it was considered an accurate map of the Adams Survey. Mr. Luther Wise, who was on the Board of Aldermen of the Town of Eupora from 1930 to 1940, testified that the map was in excellent condition in 1930 and was being referred to at that time to determine lots and blocks according to the Adams Survey.

Appellant also offered in evidence a copy of the Adams Survey which was in the possession of appellant and had been since the death of her father. She testified that she first saw the map in 1930, that "my father got that map out and showed us where our home place was on Lot 12 and 13 of the Adams Survey, and told me that was the Adams Survey map, the first map of the Town of Eupora." She also testified that she had loaned this map to various people to check lots by, including the attorney for the appellee.

The appellee objected to the introduction in evidence of both of these maps, which objections were sustained by the court. At the completion of the testimony for appellant, a motion was made by appellee to exclude the evidence offered by appellant and to render a decree for the defendant, appellee here, on the grounds that there had been a complete failure to establish any legal or understandable description of the property sought to be levied upon, sold, or conveyed, and because at the time of the sale J.W. Buchanan had been adjudicated a bankrupt and his affairs were being administered in bankruptcy. The motion was sustained and the bill dismissed, from which decree the appellant appeals.

(Hn 1) When such a motion is sustained, under the rule as announced in Partee v. People, et al., 197 Miss. 486, 20 So.2d 73, and Skrmetta v. Moore, et al., 202 Miss. 585, 30 So.2d 53, all of the facts which the complainants' evidence fairly tends to establish, together with all the reasonable inferences to be deduced therefrom, plus the admissions made of record by the parties and pleadings, should be assumed to be true.

Sec. 9775, Miss. Code of 1942, provides: ". . . and parol testimony shall always be admissible to apply a description of land on the assessment roll, or in a conveyance for taxes, where 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."

(Hn 2) The description is good on its face. Parol testimony is competent in applying the description to a particular tract of land. Freeman v. Adams, 207 Miss. 760, 43 So.2d 362. The facts in the case of Pearce v. Tharp, 118 Miss. 107, 79 So. 69, are similar to the facts in this case. Bill was filed in that case to confirm title to a lot in Harrison County described as lot 49 of the Gootshalk Survey. No map of the survey was of record in Harrison County. The court presumed, where the courthouse had been destroyed, that a map had been filed of the subdivision in question, and held that the location of the lot had been sufficiently established by the testimony of a surveyor who had established the location of the lot by information gained from the examination of a copy of a map in another state and an examination of the land records. The court, in its opinion, referred to the fact that the defendant also claimed through the Gootshalk Survey and further said: "To hold, as we are asked to hold, that the description shown in this record is insufficient to sustain a title, in the absence of any other showing to the contrary, would be practically to unsettle numerous titles along the coast."

(Hn 3) In this case, the evidence shows that there was a map of the Adams Survey of the Town of Eupora in the office of the City Clerk. The lot in this case has been conveyed by the description, Lot 2, Block 20, Adams Survey, since 1891 and the testimony fully established that the map was legible in 1930 and in use at that time. The map in use by the Town of Eupora and also the map in possession of Mrs. Christine B. Meek should have been admitted in evidence for whatever they were worth.

(Hn 4) However, the admissions in the answer of the defendant removed all doubt, if any existed, that the description could be applied to a particular tract of land. The answer admitted that the defendant was in possession of a lot of land that it went into possession of when warranty deed was delivered to it (the deed described the land as Lot 2, Block 20, Adams Survey), and admitted that the lot of land was known as Lot 2, Block 20, Adams Survey, and proceeded to give a metes and bounds description of said lot, thereby definitely and certainly identifying the land that the description Lot 2, Block 20, Adams Survey, applies to. Mixon v. Clevenger, 74 Miss. 67, 20 So. 148.

(Hn 5) As to the second ground of the motion to exclude, we think that it is well settled that the trustee in bankruptcy can elect to pay the taxes or not pay the taxes on the property of a bankrupt in his hands. And in this case the evidence shows without dispute that the trustee elected not to pay the taxes, and sold the land subject to all taxes, city, county, and state, which he was authorized to do.

We are of the opinion that the learned chancellor was in error in sustaining the motion and the cause is reversed and remanded.

Reversed and remanded.

McGehee, C.J., and Roberds, Hall, and Ethridge, JJ., concur.

MEEK v. FARMERS' COOPERATIVE (AAL).

Comments