Austin v. Sullivan

Smith, C. J., delivered the opinion of the court. This is a suit by the appellee to confirm the tax title held by him to certain land, which, unless the tax title is good, is owned by the appellee.' In 1909 Robert E. Burkett owned the West half of the North West quarter of section 23, Township 4, Range 13, West, less that part thereof included in the rights of way of several railroads which cross the land. Burkett executed a deed of trust thereon to Griffin to secure an indebtedness to him. Afterwards and prior to 1913, he sold a portion of the land to other parties, among them being his brother John B. Burkett, to whom he sold the land here in controversy. In 1913 the West half of the North West quarter of section 23, Township 4, Range 13, West, was assessed on the county assessment roll as follows: [747] Robert E. Burkett, West half of the Northwest quarter less railroad right of way, containing forty-five acres valued . .$ 450 00 Robert E. Burkett, part of the Southwest quarter of the Northwest quarter, lying between G. & S. I. R. R. and N. O., M. & C. R. R., less part sold T. S. Jackson, 4 acres, valued..... 50 00 Hattiesburg Wood Reduction Company part of the West half of the Northwest quarter, part of the Northwest quarter of « the Northwest quarter, containing twelve acres, valued____ 600 00 John B. Burkett, part of the Northwest quarter of the Northwest quarter, lying between M. C. and N. O., M. & C. R. R., six acres, valued ........................................ 50 00 Tatum Lumber Company, fifty feet across West half of Northwest quarter, two acres, valued .......................... 10 00 Tatum Lumber Company, fifty feet across Southwest quarter of the Northwest quarter, one acre valued .................. 10 00 Total acres assessed in the West half of the Northwest quarter, section 23, seventy acres Total value assessed .................................... $1,170 00 Total acreage in railroad rights of way, ten. The deed of trust executed by Robert E. Burkett to Griffin was foreclosed, and the land was purchased at the sale by Griffin, who in December, 1914, conveyed it to the appellant; the two Burketts joining with him in the deed. ! Before purchasing the land the appellant was advised by Stokes Y. Robertson, the attorney and agent for Griffin and Robert E. Burkett, that the land was free of all incumbrances, and that the taxes for 1914 had been paid. Robertson, himself., as Griffin’s • agent, paid the taxes due on the two assessments of the land to Robert E. Burkett hereinbefore referred to. He was not aware of the assessment of the six acres here in question to John B. Burkett, and supposed that the assessment to Robert E. Burkett covered all the land. The taxes based on the assessment of the six acres here in question to John B. Burkett not having been paid, the land was sold thereunder by the tax collector, struck off to the state, and afterwards sold by the state land commissioner to the appellee; the deed from the land commis [748] sioner to the appellee being that under which he claims and here seeks to have confirmed. One of the appellant’s contentions is that the sale to the state for taxes is void for the reason that all the taxes due on the land for 1914 were paid under the assessment thereof to Robert E. Burkett. One of the appellee’s contentions is that, when the several assessments of the land embraced in the West half of the North West quarter of the section here in question are taken into consideration, it is manifest therefrom that the first assessment thereof to Robert E. Burkett was not intended to include all of the West half of the North West quarter less the railroad rights of way, but only forty-five acres in the West half of the North West quarter, which assessment would be valid under sections 4283 and 4285', Code of 1906 (sections 6917 and 6919, Hemingway’s Code). The description of the land assessed to Robert E. Burkett is plain and unambiguous, and covers the whole of the West half of the North West quarter less the railroad right of way. It is true that the land included in this description is more than forty-five acres, but the error in the statement of the number of acres therein included is not material and can have no effect on the description thereof. This being true, what here occurred was simply that that part of the North West quarter of the North West quarter of section 4, between the M. C. and N. O., M. & C. R. R. here in controversy was assessed twice, but, having been paid on under one of the assessments thereof, could not be sold for taxes under the other. Dodds v. Marx, 63 Miss. 443. The decree of the court will be reversed, and the bill dismissed. Reversed, and bill dismissed.