OF JUDGMENT: 05/23/2016
COUNTY CHANCERY COURT HON. E. VINCENT, TRIAL JUDGE
ATTORNEY FOR APPELLANT: LUCIEN C. GWIN JR.
ATTORNEY FOR APPELLEES: CHARLES CHAMBLISS (PRO SE)
In this case, we must determine whether the chancellor erred
in voiding a tax sale and in finding that the tax-sale
purchaser did not acquire the subject property by adverse
possession. Additionally, we must determine if statutory
damages were properly awarded to the tax-sale purchaser.
Finding error regarding the chancellor's calculation of
the statutory damages, we affirm in part and reverse and
remand in part.
In July 2014, Eddie Orcutt filed a complaint in the Jefferson
County Chancery Court to quiet and confirm tax title in a
particular piece of property located in Jefferson County.
Orcutt and Savy Kerageorgiou had purchased the subject
property at a tax sale on August 30, 1993. The Jefferson
County Chancery Clerk issued a tax deed to Orcutt and
Kerageorgiou on September 26, 1995. The tax deed indicated
the taxes had been assessed to the "Henry Chambliss
Estate." Kerageorgiou later conveyed his interest in the
property to Orcutt, leaving Orcutt the sole owner of the
property, consisting of approximately twenty acres.
Charlie Chambliss responded to Orcutt's complaint,
claiming that he never received notice of the tax sale and,
alternatively, he acquired the property by adverse
possession. After a trial, the chancellor determined that
Chambliss never received notice of the tax sale; thus, the
tax sale was void. The chancellor further found that Orcutt
had failed to prove ownership of the land by adverse
possession. However, the chancellor did award Orcutt
statutory damages totaling $5, 151.56.
Orcutt now appeals, asserting that (1) the tax sale was not
void; (2) he proved adverse possession by clear and
convincing evidence; (3) the chancellor erred in calculating
the statutory damages; and (4) he should be reimbursed for
work performed on the subject property.
The property in question is a part of a larger tract of land
(seventy-four acres) in Jefferson County, originally
belonging to Henry Chambliss, who died in the 1940s. The land
is repeatedly referred to as "The Henry Chambliss
Estate" (the Estate). Over the years, the property was
divided. At the time of trial, Orcutt and his wife owned the
west thirty acres (Parcel 1). Little Tree Lumber Company bought
the east twenty-five acres from Chambliss in 1981 (Parcel 3).
The middle twenty acres is the property at issue (Parcel 2).
Chambliss contends he received title to the remainder of the
Estate (less the thirty acres in Parcel 1) in 1977 from his
uncle, Milton Goudy. Goudy had received his interest in the
land from his wife, Everlena Chambliss Goudy, who was an heir
The record contains a warranty deed dated October 22, 1977,
stating, in part:
I, the undersigned, MILTON GOUDY, do hereby sell, convey and
warrant unto CHARLIE R. CHAMBLISS all of my undivided
interest, supposed to be one-half (1/2), in the following
described land and property located and situated in Jefferson
County, Mississippi, to-wit:
The North half (N 1/2) of the Northwest Quarter (NW 1/4) of
Section Twenty-six (26), Township Ten (10) North, Range Three
(3) East, less and except the West 30 acres thereof sold to
James Townsend, et ux, by deed recorded Book 5-T, page 110 of
the land records of Jefferson County, Mississippi.
The said Milton Goudy is the sole and only heir at law of
Everlena Chambliss Goudy, who died in 1975. The said Everlena
Chambliss Goudy inherited her interest in said land from her
father, Henry Chambliss, who got the property by deed
recorded Book V, page 582 of the land deed records of
Jefferson County, Mississippi.
deed was recorded on November 17, 1977. We note that in 1978,
Chambliss deeded his interest in the property (less Parcel 1)
to Rosetta Watts, Chambliss's relative. In 1981, Watts
deeded the same property back to Chambliss prior to the sale
of Parcel 3 to Little Tree Lumber.
The testimony regarding proof of adverse possession will be
discussed in issue II.
I. Tax Sale
We first note that the dissent contends the chancellor
improperly handled Chambliss's motion for an involuntary
dismissal. However, Orcutt did not raise this issue in
posttrial motions or in his appellate brief; thus, this issue
is procedurally barred. See J.N.W.E. v. W.D.W., 922
So.2d 12, 20 (¶31) (Miss. Ct. App. 2005).
Orcutt argues that the tax sale was not void because
Chambliss admitted he did not own the property in question.
After issuing a judgment finding that the tax sale was void
and that neither party had proved adverse possession, the
chancellor requested additional briefing regarding statutory
damages. In his brief, Chambliss stated he was not liable to
Orcutt for statutory damages because he "has no interest
in the disputed property." Orcutt relies upon this
statement to contend that the chancellor erred in voiding the
tax sale. However, the chancellor disregarded this assertion,
noting that Chambliss had testified under oath during trial
that he was the owner of the property in question and
received his interest in the property from Goudy.
In regard to the tax sale, we agree with the chancellor that
the tax sale was void for failure to give proper notice.
"When property is sold for unpaid county or municipal ad
valorem taxes, the property owner must be given notice of his
right to redeem the property within 180 days of, but no less
than 60 days prior to, the expiration of the redemption
period." DeWeese Nelson Realty Inc. v. Equity Servs.
Co., 502 So.2d 310, 311 (Miss. 1986). The statute
governing the owner's right to notice of redemption is
Mississippi Code Annotated section 27-43-3 (Rev. 2010), which
states that if the reputed owner of the property is a
resident of Mississippi, the chancery clerk must give notice
by registered or certified mail to the owner's usual
physical or mailing address, personal notice in the same
manner as in Mississippi Rule of Civil Procedure 4(d)(1), and
publication in the county where the land is located.
"Statutes dealing with land forfeitures for delinquent
taxes should be strictly construed in favor of the
landowners." Viking Invs. LLC v. Addison Body Shop
Inc., 931 So.2d 679, 681 (¶7) (Miss. Ct. App.
2006). "Any deviation from the statutorily mandated
procedure renders the sale void." Id.
As previously stated, the record indicates the taxes had
always been assessed to the Estate, even after Chambliss
became record owner. According to Chambliss, the neighboring
landowners had offered to pay the property taxes in exchange
for allowing their cows to graze on the land in question. The
notice of the tax sale was published three times in the
county where the land was located: on August 19, 1993; August
18, 1994; and August 17, 1995. The listing states the
property, specifically parcel number 0202-26-002, was to be
sold due to delinquent taxes.
Other than the publication, the chancellor noted that Orcutt
did not offer any proof that the other requirements of
section 27-43-3 were followed. There was no evidence
regarding the chancery clerk's requirements for notice,
and there was no evidence that personal service was attempted
under Rule 4(d)(1).
The record contains two documents titled "Notice of
Forfeiture." Both are directed to the Estate at an
address in Jackson, Mississippi, and both refer to parcel
number 0202-26-002. One states that the property was sold on
August 28, 1994,
to [the] State of Mississippi for the county taxes of 1993,
and that the title to said land will become absolute in [the]
State of Mississippi unless redemption from said tax sale be
made on or before [August 15, 1996]. Your taxes are behind,
the third year of delinquency is August 1996.
document is not signed by the chancery clerk as required. The
other document states the property was sold on September 28,
1995, "to Kerageorgiou and Orcutt for the county taxes
of 1994, and that the title to said land will become absolute
in Kerageorgiou and Orcutt unless redemption from said tax
sale be made on or before" August 31, 1997. The document
is signed and dated February 14, 1997. However, the record
includes receipts for payment of taxes for both 1993 and 1994
by Orcutt and Kerageorgiou. The chancellor determined that
these notices were not mailed to Chambliss and were not
related to the August 30, 1993 tax sale for the unpaid 1992
taxes. The chancellor stated that "no one from the
[clerk's office] testified in an attempt to prove that
proper notice was actually mailed to anyone relating to this
property." The chancellor also held that it was
undisputed that Chambliss was the record owner and had not
received notice of the sale.
We agree with the chancellor that the tax sale was void for
lack of notice. Next, we must determine whether Orcutt proved
ownership of the property by adverse possession.
Orcutt claims that if we find the tax sale void, then he
gained title to the property by adverse possession.
Mississippi Code Annotated section 15-1-13(1) (Rev. 2012)
defines adverse possession as follows:
Ten (10) years' actual adverse possession by any person
claiming to be the owner for that time of any land,
uninterruptedly continued for ten (10) years by occupancy,
descent, conveyance, or otherwise, in whatever way such
occupancy may have commenced or continued, shall vest in
every actual occupant or possessor of such land a full
complete title . . . .
apply a six-part test for determining whether adverse
possession has occurred: "for possession to be adverse
it must be (1) under claim of ownership; (2) actual or
hostile; (3) open, notorious, and visible; (4) continuous and
uninterrupted for a period of ten years; (5) exclusive; and
(6) peaceful." Walker v. Murphree, 722 So.2d
1277, 1281 (¶16) (Miss. Ct. App. 1998). The burden was
on Orcutt to prove each element by clear and convincing
evidence. Ellison v. Meek, 820 So.2d 730, 734
(¶13) (Miss. Ct. App. 2002).
A finding that the proof was sufficient to sustain a claim of
adverse possession is a fact-finding that requires our
application of the substantial-evidence/manifest-error test.
Walker, 722 So.2d at 1280 (¶15). If substantial
evidence supports the chancellor's fact-findings, this
Court must affirm, even though we "might have found
otherwise as an original matter." Nichols v.
Funderburk, 883 So.2d 554, 556 (¶7) (Miss. 2004).
Orcutt contends that the chancellor properly classified the
property as "wild lands"; thus, he argues that the
proof necessary to establish adverse possession is less than
if the property had been improved or developed.
"Possessory acts necessary to establish a claim of
adverse possession may vary with the characteristics of the
land, " and "adverse possession of 'wild'
or unimproved lands may be established by evidence of acts
that would be wholly insufficient in the case of improved or
developed lands." Walker, 722 So.2d at 1281
(¶16). The chancellor determined that the land was wild
because no one actually lived on the property during the
period in question and "all actions claimed or described
by any party or other witnesses were of a recreational nature
that is more consistent with wild land." However, there
was testimony that an empty house formerly occupied by
previous landowners was located on the property, indicating
that the land was not unimproved.
Orcutt further relies upon Mississippi Code Annotated section
15-1-15 (Rev. 2012) for support, which states:
Actual occupation for three years, after two years from the
day of sale of land held under a conveyance by a tax
collector in pursuance of a sale for taxes, shall bar any
suit to recover such land or assail such title because of any
defect in the sale of the land for taxes, or in any precedent
step to the sale, saving to minors and persons of unsound
mind the right to bring suit within such time, after the
removal of their disabilities, and upon the same terms as is
provided for the redemption of land by such persons.
supreme court in Bowser v. Tootle, 556 So.2d 1373,
1375 (Miss. 1990), stated,
do not understand actual occupancy to mean that one must
reside personally upon the property[, ] but we do
understand it to mean possession over the three[-]year
period which is of such a nature, throughout the
three[-]year period, that another, believing himself or
herself to be the owner of the property, would recognize
that someone else was asserting a claim to it because of a
clearly visible indicia of occupancy on the property.
chancellor determined that section 15-1-15 was inapplicable
to wild lands since there was no "actual
occupation" during this time, citing Waldrop v.
Whittington, 213 Miss. 567, 573, 57 So.2d 298, 300
(1952). In Waldrop, the supreme court determined
that the statute "applies only where there is
'actual occupation' under the tax title, and in this
case it appears . . . the land in question is wild land and
has never been actually occupied by anyone. Consequently . .
. the only bar to this suit by limitation would be our
ten-year statute. . . ." Id. Based upon this,
the chancellor applied the ten-year limitation period.
The chancellor made detailed findings in regard to each
element, ultimately finding that Orcutt did not prove adverse
possession by clear and convincing evidence.