Bowers v. Andrews

Simrall, C. J., delivered the opinion of the court. The single question presented by the record is whether the deed offered in evidence by the plaintiff was admissible. The objection taken to it was that it was void for uncer tainty in the description of the property. ■ The premises are as follows : “ R. J. Boss, tax collector of Madison county, has this day sold the following lands, to wit, lot and residence in Madison Station, for the taxes assessed to the reputed owner thereof, Thomas McMahon, for the year 1871.” The officer, in making the sale, was acting in virtue of statutory power. Iiis- proceeding was in invitum. The words ‘ ‘ for the taxes assessed,” etc., are used rather to state the reason and authority for the act than as descriptive of the thing sold. Every conveyance of land must define its identity or fix its locality. That may be done in two modes. The first is by so complete a description in the deed itself as points directly-to the subject-matter; or, second, by referring to something aliunde the deed, which, when consulted, indicates the property. If the contract is void by reason of the subject-matter, parol evidence is not admissible to supply the omission. Wilkinson v. Davis, adm’r, Freem. Ch., 58. In a sense it is [601] ■ true in every case that parol testimony must carry the descriptive words of tbe deed, and apply them to the land. Yet these words must contain such particularity in themselves as will .guide to the premises, or they must point to some extrinsic fact by means of which the requisite certainty is obtained. This is well illustrated by the case of Swazie v. McCrossin, 13 S. & M., 320. The description was “412 acres of all of ;a certain tract purchased by Bernard McCrossin from the United States, containing 1,020 arpents,” then giving the boundaries by abuttals on lands of adjacent proprietors. This deed was held void for'the patent ambiguity, because it was impossible from the face of the deed to know upon what part of the whole tract the 412 acres should be located, nor was any extraneous fact referred to, by aid of which the ambiguity could be removed. But the deed may refer to some other document or fact which, when looked -to, will supply ample certainty of description. Of many such cases we refer to the following : ‘ ‘All that farm * * * in Washington on which the grantor then lived, containing 100 acres, with his dwelling house and barn thereon.” Worthington v. Hyler, 4 Mass., 196. “ A certain tract called Beaver Dam.” Hatch v. Hatch, 2 Hayw., 52. “ The home farm on which the grantor lives.” Doolitte v. Bleakly, 4 Day, 265. “An estate purchased of A, or a farm occupied by B.” 1 Merivale, 653. See, also, Tallman v. Franklin, 14 N. Y., 589 ; 1 Phillips (N. C.), 466. In each of these cases the grantor •directed attention to some outside fact, as the name of the farm, •or some other deed, or the occupancy of himself or some other person, inquiry into which would identify the premises sold. Let us take this principle and apply it to the tax collector’s •deed. First, does the deed locate the premises ? If it does not, is reference made to something extrinsic by which the ’identity can be ascertained? The premises purported to be conveyed are “lot and residence in Madison Station.” We have no information of the square, or number, or size. The words may fit twenty or [602] more “lots or residences” quite as well as the one sued for.. The idea of a mere house or factory is excluded. The words are wholly indefinite. They do not point to the lot and residence of Thomas McMahon, or of any other person, or promises occupied by him. There may be many residences in Madison Station. The descriptive words do not single out which one was meant. In this respect it is like Holmes v. Evans, 48 Miss., 250. There the description was “ a piece of' property on the corner of Main and Pearl streets, Natchez.” The description equally applied to four pieces of property, but-the writing pointed to no fact aliunde from which it could be determined which of the four was intended to be sold. If it-had been competent to go into the inquiry, as an independent fact, of what property the vendor intended to sell, it doubtless, would have been easy of proof; but it is not admissible by direct evidence to prove the intention, but it is admissible by such testimony to apply the terms of the deed. McGuire v. Stephens, 42 Miss., 751. If it were competent to go into the question of intention,, no matter how barren the deed might be of description of the thing sold, in perhaps every conventional sale it could be. proved what particular property the parties meant. After the deed had been rejected the plaintiff read in evi--dence the assessment roll, and then reoffered the deed, which was again excluded. But this document showed nothing more-than “ lot and residence” assessed to Thomas McMahon, but. how located does not appear. Testimony was then offered that he owned the lot and residence described in the declaration, and no other. This was also-ruled out. The offer was not to apply the words used in the-deed to particular premises, and thereby identify them, but to introduce new and independent circumstances, and thus-prove that the property sold was the same sued for. The deed of a tax collector who sells in invitum, by virtue of power conferred by law, must- in itself be sufficient to convey the-thing sold. [603] The deed cannot be reformed so as to help out a defective-description. There is no “ aggregatio mentium” which the-instrument has mistaken. But where parties negotiate a sale of. property each has-definitely in view the particular property. If, from vague and indefinite description, the deed should be inoperative, there is.a. clear right to have it so remodeled as to make it an effectual assurance. So that in no case of merit could wrong be done, if parties pursue their remedies. We concur with the circuit court in its rulings, remarking that the question is not altogether free of embarrassment and difficulty. ■ Judgment affirmed.1 Footnotes [1] Note. — The foregoing opinion was read, on the first consideration of the case,, as the judgment of the court. I adopt it on the reconsideration as my separate-opinion. — Simrall.