Sullenger v. Baecher

Lairy, J. Appellee recovered a judgment in the Knox Circuit Court quieting his title as against appellant to a certain tract of land in Knox County, Indiana. The only error assigned on appeal is the action of the trial court in overruling appellant’s motion for a new trial. For some time prior to the year 1904, Henry L. Wheatley was the owner of the real estate in controversy and was in possession of the same. On February 11, 1907, appellee purchased the land at a sale for taxes assessed against Henry L. Wheatley for the year 1906 and previous years, and received a certificate therefor. On February 12, 1909, the auditor of Knox County, upon presentation of this certificate, executed and delivered to appellee a tax deed, upon which appellee bases his claim of title to the land involved in this suit. At the time this action was brought, appellant was in possession of the land, claiming title thereto as heir of her father, Henry C. Mooney and by virtue of an unrecorded deed executed to him by the trustee in the bankruptcy proceeding of Henry L. Wheatley. 1. The first specification of appellant’s motion for a new trial challenges the sufficiency of the evidence to sustain the verdict. Appellant’s contention is that the tax deed upon which appellee relies is not sufficient to convey title for the reason that the description contained in the records made for taxation purposes is so uncertain, indefinite and imperfect that no valid deed could be based thereon. It appears from the evidence that survey No. 17, of which the land in controversy formed a part, contained about 200 acres of land. The land which appellee purchased at the tax sale is described in the entry for taxation on the tax duplicate of Knox County as follows: “Henry L. Wheatley Part Lot 17, Township 1, Range 10, 100 acres.” The description in the notice of tax sale is in the words and [368] figures following: “Henry L. Wheatley pt. lot 17, tp. 1, range 10, 100 acres.” In the delinquent list returned by the auditor the description is: “Pt. lot 17, Township 1, Range 10, acres 100. Johnson Township, Knox County, Indiana.” In the tax sale record the land is described as follows: “All Survey 17 Township 1, Range 10, 100 acres, Johnson Township.” and in the tax certificate upon which the deed purports to be issued the description reads: “Part of Sur. 17, Town one Range Ten containing 100 acres in Johnson Township, Knox County, Indiana.” It is apparent we think that none of these descriptions were sufficient to indicate what part of survey 17 was covered by the description. No surveyor from this description alone would be able to locate and identify the particular tract intended, for the reason that 100 acres of land laid off any place within the survey would meet and comply with all of the terms of the description. Under the decisions of the courts of this State, the deed based upon these descriptions was wholly ineffective to convey title. Cooper v. Jackson (1880), 71 Ind. 244; Ball v. Barnes (1890), 123 Ind. 394, 24 N. E. 142; Armstrong v. Hufty (1901), 156 Ind. 606, 55 N. E. 443, 60 N. E. 1080; Brown v. Reeves & Co. (1903), 31 Ind. App. 517, 68 N. E. 604; Green v. McGrew (1905), 35 Ind. App. 104, 72 N. E. 1049, 73 N. E. 832, 111 Am. St. 149; Reed v. Earhart (1882), 88 Ind. 159; Ford v. Kolb (1882), 84 Ind. 198. 2. It is the policy of the law to preserve and enforce the lien of taxes, and, with that end in view, courts have frequently sustained descriptions in tax records for the purpose of enforcing the lien, which, under the decisions of the same courts, would be clearly insufficient to convey title by a tax deed based thereon. State, ex rel. v. Casteel (1887), 110 Ind. 174, 11 N. E. 219; Peckham v. Millikan (1885), 99 Ind. 352; Sloan v. Sewell (1881), 81 Ind. 180. [369] 3. 4. [368] Appellee relies upon §10380 Burns 1908, Acts 1891 p. [369] 199, §206, which, contains the following provision: “Such deed shall be prima facie evidence of the regularity of the sale of the premises described in the deed, and of the regularity of all prior proceedings, and prima facie evidence of a good and valid title in fee-simple in the grantee of said deed.” He correctly asserts that by force of this statute, the introduction of the tax deed in evidence was sufficient to make a prima facie case in his favor upon the question of title. This may be conceded but the presumption arising from the prima facie ease so made is subject to be rebutted by evidence, and in this case it is so rebutted by evidence showing that the description of the land in the tax records upon which the deed is based is so defective as to render the deed ineffectual to convey title. This conclusion is not reached as a result of weighing conflicting parol evidence. The evidence which rebuts the prima facie case consists entirely of records, and it is the province of the court to declare what force and effect shall be given to evidence of this character. Sallee v. Soules (1907), 168 Ind. 624, 81 N. E. 587; State, ex rel. v. Board, etc. (1905), 165 Ind. 262, 74 N. E. 1091. Other questions presented by this appeal are not considered for the reason that they will not probably arise upon another trial. The judgment is reversed with directions to grant a new trial.