Schattler v. Cassinelli

Hemingway, J. The appellant claims a tract of land under a tax deed and decree confirming it. The only description -in the deed or decree is “ B. part N. & SB. i of SB. | sec. 27, town. 2 N. range 12 W., containing 7.54 acres ; ” there is no circumstance in the description — as of ownership — to assist in its identification. The question is, does this identify the land ? It is conceded that the taxes had been paid upon a part of the land which would come within a parallelogram, of the stated area, described by taking the east line of the tract as a base and its north and south lines as laterals; and that it was not intended to sell a tract in a parallelogram but one in a trapezoid. It is clear that any tract of the requisite area, taken out of the east half of the twenty acre tract, would, in a general sense, come within the description, and it is impossible to determine just what was intended, unless there is some rule of legal construction that gives to the description a meaning different from its popular acceptation. The appellant contends that such is the case, and that the law intends from the description a tract of the stated area in the form of a parallelogram described upon the east line of the larger tract as a base with the north and south lines as laterals. Such is the rule often applied by courts in construing descriptions as between parties to them, where there is a clear intention shown to affect some part of a definite tract, and the parties furnish no other means to identify the part. But this rule is not unbending, even in such cases, and yields to a proper showing that the parties intended otherwise ; and proof that the party acting- upon the land owned but one tract coming within the description, and it not in a parallelogram, has been permitted to control. Therefore if the rule apply at all in cases where the description is not made by the owner but is found in proceedings that prejudicially affect him, it could not govern in this case, because the circumstances and the claim made by the appellant show that there was no intention to sell a tract in a parallellogram. When the circumstances rebut such intention and supply no other, the description is left uncertain and meaningless, and notice does not inform the owner that he is liable to lose his land or the public what is to be sold. The case of Stewart v. Aten's Lessee, 5 Ohio St. 257, presents a description strikingly similar to the one under consideration, and it was adjudged void for uncertainty, for the reasons stated by us. But if there was nothing in the circumstances to rebut the presumption of an intention to sell a parallelogram, it may be seriously doubted whether the description standing alone would come within the rule invoked and be held sufficiently definite. For in cases where such descriptions have been aided by the rule, it appeared, either by direct recital in the description or from the circumstances, who owned the land intended ; and the ownership indicated was held sufficient to perfect the identification. Judd v. Anderson, 51 Ia. 345, may be cited as an example. In this case we find nothing in the description itself or in the circumstances to indicate who owned the land sold for taxes ; and as ownership was not disclosed as a means of identification, it may be questioned whether the description before us could in any case be adjudged sufficient. The plat on file may be used to illustrate the great injustice that the rule invoked would work, if applied to tax sales and proceedings to confirm them. Mrs. La Fore owns lots 5 and 6, containing, say, two acres; and Cassinelli owns lots 7 and 8, containing, say, three acres ; and all are a part of the east half of the twenty acre tract. Suppose Mrs. La Fore should pay taxes on two acres as in the eastern part of the tract and take her receipt, and that Cassinelli should fail to pay upon his part; that Mrs. La Fore should see advertised for sale as delinquent ‘ ‘ three acres in the east part ’ ’ of the tract, assessed to an unknown owner. Would she, or any ordinarily intelligent and prudent owner in her position, think that a part of her land was to be sold ? We think not; and if not, such description is practically no description, since it lacks the first requisite of one — notice to the owner. Yet if the rule be applied, such a sale would be valid; and pass, not the land intended, but the land in a parallelogram along the entire line of the tract, including a part of her lots. Thus a rule of judicial origin, which was designed to ascertain the meaning of parties to a description when they had not clearly expressed it, would be employed against one who was a stranger to the description and ignorant that it was intended to apply to his land; the result would be to pass land which no one intended, or was authorized, to sell, and which persons ordinarily conversant with land descriptions would not expect to be sold. A description which can be understood and made definite only by judicial construction does not accomplish the essential functions of a description in tax proceedings ; and as the law requires one to be made for the practical purpose of protecting the owner, any that conveys no certain meaning to persons ordinarily versed as to such matters does not answer the requirement. One which is intelligible only to a high order of legal understanding conveys no meaning to others — the vast majority of tax payers — and should not be adjudged sufficient as the basis of a tax proceeding, or of a proceeding to confirm a tax sale upon constructive notice. As the rule is of judicial origin, intended to aid in the practical administration of justice, it should not be extended beyond the sphere of its- usefulness to a class of cases where it is calculated to work injustice and wrong. Whether the court could have -granted the relief upon a complaint which showed that, though the defendant was asserting a claim to the land, his deed and decree contained no certain description of it, we need not decide. Nor the defendant filed a cross-bill with his answer, and incorporated in it a prayer for general relief ; he thereby invoked the judgment of the court upon the conflicting claim of title which he set up, and this warranted the court in determining the merits of the entire controversy and adjudging the effect of the deed and decree. Affirm.