Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Orcutt v. Chambliss

Court of Appeals of Mississippi

January 16, 2018

EDDIE ORCUTT APPELLANT
v.
CHARLES CHAMBLISS, INDIVIDUALLY, JEFFERSON COUNTY, MISSISSIPPI, JIM HOOD, IN HIS OFFICIAL CAPACITY AS THE ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI, ALEXANDER C. MARTIN, IN HIS OFFICIAL CAPACITY AS THE DISTRICT ATTORNEY FOR JEFFERSON COUNTY, MISSISSIPPI, AND ANY AND ALL OTHER PERSONS KNOWN OR UNKNOWN, CLAIMING OR HAVING A LEGAL OR EQUITABLE INTEREST OR ASSERTION OF ANY RIGHT, TITLE OR CLAIM TO THE FOLLOWING DESCRIBED PROPERTY SOLD FOR TAXES ON AUGUST 30, 1993: N-WALKER, E. CHAMBLISS-DUNGAN AND CHAMBLISS W. CALHOUN PARCEL NO. 0202-26-002 SECTION 26 TOWNSHIP 10 NORTH-RANGE 3 EAST, BEING TWENTY (20) ACRES AND RECORDED IN DEED BOOK 7T AT PAGE 221 ON OCTOBER 3, 1995, IN THE DEED RECORDS OF JEFFERSON COUNTY, MISSISSIPPIAPPELLEES

          DATE OF JUDGMENT: 05/23/2016

         JEFFERSON COUNTY CHANCERY COURT HON. E. VINCENT, TRIAL JUDGE

          ATTORNEY FOR APPELLANT: LUCIEN C. GWIN JR.

          ATTORNEY FOR APPELLEES: CHARLES CHAMBLISS (PRO SE)

         EN BANC.

          LEE, C.J.

         ¶1. 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.

         PROCEDURAL HISTORY

         ¶2. 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.

         ¶3. 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.

         ¶4. 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.

         FACTS

         ¶5. 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).[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 of Henry.[2]

         ¶6. 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.

         The 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.

         ¶7. The testimony regarding proof of adverse possession will be discussed in issue II.

         DISCUSSION

          I. Tax Sale

         ¶8. 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).

         ¶9. 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.

         ¶10. 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.

         ¶11. 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.

         ¶12. 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).

         ¶13. 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.

         This 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.

         ¶14. 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.

         II. Adverse Possession

         ¶15. 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 . . . .

         We 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).

         ¶16. 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).

         ¶17. 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.

         ¶18. 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.

         The supreme court in Bowser v. Tootle, 556 So.2d 1373, 1375 (Miss. 1990), stated,

          We 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.

         The 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.

         ¶19. The chancellor made detailed findings in regard to each element, ultimately finding that Orcutt did not prove adverse possession by clear and convincing evidence.

         1. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.