Lewis v. Monson
Statement by Mr. Justice BREWER:

This was an action brought by the plaintiff in error (plaintiff below) against David D. Withers to recover possession of a tract of land containing 80 acres, and described as follows: 'Lots 5 and 6 of section 22, township 3, range 5 west, Wilkinson county, Mississippi.' A jury was waived, and the case tried by the court. Findings of fact were made, and a judgment entered thereon in favor of the defendant, which judgment is now before us on error. 44 Fed. 165. Since the record was filed in this court, the defendant, Withers, has died, and the suit been revived in the name of his executor. The facts are these: Plaintiff's title was based on a tax deed, and the single question in the case is as to the sufficiency of that deed, for the defendant was in possession by his tenants, and, as is not disputed, held, prior thereto, the fee-simple title. The tax deed was for the delinquent taxes of the year 1887, which amounted to $4.84, while the land was of the value of $6,000. At the time of the entry and patent of these lands in 1833 and 1835 they were included in lots 3 and 4 of section 22, and the whole section, as shown by the tract book of original entries, was subdivided into four lots,-lot 1, containing 88 acres; lot 2, 62 acres; lot 3, 80 acres; and lot 4, 120 acres; and such was the description in all the defendant's muniments of title. In 1884 an act passed the legislature authorizing the board of supervisors to purchase a new and complete set of maps of the several townships of the county. In pursuance of this law, and soon after its passage, new maps were purchased and deposited in the chancery clerk's office. On the map of this township, section 22 was subdivided into six lots,-lot 1, containing 88 acres; lot 2, 62 acres; lot 3, 40 acres; lot 4, 80 acres; lot 5, 40 acres; and lot 6, 40 acres. The findings do not show the form of the assessment prior to 1875, but in that year, under a special act of the legislature, it was assessed to the defendant as section 22, containing 350 acres. In 1879 it was assessed to him as lots 2, 3, and 4, section 22, etc., containing 262 acres. In 1883 in the same way, except that the number of acres was stated at 260. In 1887, for the first time, the section was assessed as follows: Lot 1, 88 acres, to S. A. Fetters, agent; lots 2, 3, and 4, 182 acres, to D. D. Withers; and lots 5 and 6, 80 acres, to 'Unknown.' The pencil memorandum of defendant's lands, sent by his agent to the assessor as a return of assessment, was not in the form required by the assessment laws of Mississippi, but was accepted as sufficient by the assessor. That memorandum describes the land as lots 2, 3, and 4, and as containing, respectively, 62, 80, and 120 acres. Without the knowledge of defendant or his agents, the assessor, in making up the assessment roll, changed the description to conform to that in the new map. On the roll as finally prepared, lots 2, 3, and 4 appear as valued at $9 per acre, and lots 5 and 6 at $1 per acre.

The minutes of the board show no order changing the assessment of D. D. Withers, or the acreage of lots 2, 3, and 4, and none in regard to the said lands or lots 5 and 6 of said section, other than the general one receiving and approving the assessment roll of 1887, which describes lots 2, 3, and 4 as containing 182 acres, and lots 5 and 6, 80 acres.

The defendant had no notice of the new subdivision of the section into six lots, or of the procuring of new maps by the board of supervisors, or of the change in the form of description from that previously used in all deeds, in assessments, and in the memorandum of return made by his agent.

In reference to the payment of taxes the court found as follows:

'The defendant's agent and attorney went to the county site of Wilkinson county to pay defendant's taxes, because, upon a statement to defendant by the collector, the amount was much less than in former years, and the acreage of his land largely reduced, and for the purpose of clearing up and adjusting the whole matter. He discovered lands of defendant not included in the list furnished to the assessor by Swan, the defendant's agent, and paid on them. He applied to the collector then engaged in attendance on the chancery court, who informed him that he did not think he had paid on all of defendant's lands, and introduced him to a Mr. Miller, his deputy, there in his office, as one more familiar with the lands in the county than any one else, and requested defendant's agent to make himself at home, and use Miller until he got everything straight. In comparing the tax receipts of previous years with the tax receipt then in his possession, said agent noticed the discrepancy in the acreage of lots 2, 3, and 4, and called Miller's attention to it. Miller said he would see about it, stepped to the corner of the room and got the township maps, footed up the acreage of lots 2, 3, and 4, and found it 182 acres. Defendant's agent asked him how he accounted for the acreage, and he replied Withers had been paying for years on land in the Mississippi river, but added, referring to the maps, 'These are the latest surveys, and are, I suppose, correct.'

'Defendant's agent then looked at the map, and saw lots 5 and 6 thereon and asked, 'Who do lots 5 and 6 belong to?' Miller replied, 'I don't think they belong to Withers'. Said agent replied, 'They are very close to Withers' land,' and Miller answered he did not think they were ever assessed to Withers, and did not know whether they belonged to him or not. Said agent was doubtful about it; went back; made a thorough examination of Withers' muniments of title, to see if lots 5 and 6 belonged to him. It was the first time he had ever heard of said lots 5 and 6, and he had no knowledge of the discrepancy nor of the map beyond the fact that said Miller told him it was the latest survey of the particular tract. When he saw a survey of lots 5 and 6, and could find no such lots in defendant's muniments of title, he concluded the land did not belong to Withers, but that they were water lots, that belonged to no one, and that there was no land there. Said agent was then and there ready and willing to pay the taxes on lots 5 and 6, but he did not tender the money for the taxes and demand a tax receipt, as prescribed by law, because he did not think the lands belonged to Withers. He first ascertained his mistake when this suit was brought.'

In addition, it may be noticed that the list of lands furnished by the defendant's agent contained over 30 tracts, aggregating several thousand acres.

W. L. Nugent, for plaintiff.

Marcellus Green, for defendant.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court. 

Notes
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