In Gulf, C. & S. F. R. R. Co. v. Jones, 1 Ind. T. 354, 37 S. W. 208, the court said: "Proof is proof, whether by direct evidence or force of presumption. In other words, the fact that the goods were delivered to the initial carrier in good condition, raising the presumption equivalent to positive proof, so long as it is not rebutted, that the goods were in like condition when received by the terminal carrier, coupled with the evidence of damage when the property was delivered to the owner, proves the injury during the transit over the terminal carrier's line." This is a correct announcement of the rule, and fits in perfectly here.

PER CURIAM. The above opinion is adopted as the opinion of the court; and, for the reasons therein indicated, the judgment is reversed and the cause remanded. Reversed and remanded.

JOHN A. REED v. J. F. HEARD.

[58 South. 706.]

TAX DEEDS. Description of property. Variance between deed and assessment roll.

Where there was a patent ambiguity in a tax collector's deed, which could be explained only by reference to the assessment roll aided by a tax receipt and there was no assessment of the property at all, such tax collector's deed was void and conveyed no title.

APPEAL from the circuit court of Tallahatchie county. HON. N. A. TAYLOR, Judge.

Suit by John A. Reed against J. F. Heard. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Broome & Woods, for appellant.

The plaintiff below, appellant here, introduced the tax collector's deed, which is under section 1983, Mississippi Code 1906, prima facie evidence that the assessment and sale of the land was legal and valid. The record shows that counsel for the defendant below gave notice that he would introduce evidence to show the following assessments on land assessment roll 1900, page 104, but the evidence is silent as to the introduction of the roll. As a matter of fact, a fact shown by the record in unmistakable terms that the land assessment roll of 1900 was never produced and offered in evidence, though counsel did announce that "I will introduce." What "I will introduce" and what I actually introduce may be two wholly different things. I may think I will make certain proof, when making a statement of what I will do, but I may be wholly unable to do what I thought I could do, or it may be counsel forgot his promise to introduce; at any rate the roll was never introduced as shown by the record itself. But for the sake of argument we will say that his intention was equivalent to the actual introduction of the roll, and the roll would have shown that this particular land was not assessed on it. Would this overcome the prima facie case made out by the appellant when he introduced the tax collector's deed? The statute says, the deed is prima facie evidence that the same was properly assessed. It does not say how it shall be assessed in that particular statute, but further on the statute says that lands can be assessed in two ways, as follows, to wit: First, by the tax assessor, which shall be put on his assessment roll, and then under section 4320, Mississippi Code 1906, it provides that where land is left off the assessment roll for any cause, and the same is due to pay tax, the tax collector shall assess the same and collect taxes on it.

Is there a suggestion anywhere in the whole record that the appellee proved, or offered to prove, that the

tax collector had not assessed the land in controversy? And in order for the appellee to overcome the prima facie case made out by the tax deed that the land was legally assessed he must not only show that it was not assessed by the tax assessor, but must show that it was not assessed by the collector or any one else authorized to make assessments. Now, has he done this? If he has this record totally fails to disclose it. The burden of proof was on him to establish it; the court had previously decided that the land properly described in the deed, under the proof that the sale was made according to law, and the only question involved is whether or not the appellant showed that the land was assessed by the introduction of his tax deed. We submit that all of the vital questions involved in this case were settled beyond all cavil when the same was in the supreme court on the first appeal. We confidently ask for a reversal of the cause.

Dinkins, Caldwell & Ward, for appellee.

The title of the appellant, Reed, depends upon the validity of the tax sale made by tax collector R. J. Thompson, on June 2, 1902, for delinquent taxes for the year 1901.

The tax deed executed by the tax collector, R. J. Thompson, which was offered in evidence at the trial of this case in the court below, by the defendant, is void for uncertainty of description, the description in the deed being: "40 A. in W. 1⁄2 of N. W. 14, Sec. 24, Twp. 25, Range 2 W. 40 Acres." See Brown v. Guice, 46 Miss. 299; Yandell v. Pugh, 53 Miss. 295; Morgan v. Schwartz. 66 Miss. 613; Bowers v. Andrews, 52 Miss. 596; Smith v. Brothers, 86 Miss. 241.

Since the description in the tax deed to Reed is defective for uncertainty of description, it would be necessary for him in the trial of the case to resort to parol testimony to aid the description, and in order to do this,

the assessment roll or the deed must furnish the clue which, when followed by the aid of parol testimony conducts certainly to the land intended. Parol testimony is admissible only to apply the description on the assessment roll which must give the start and suggests the course, which being followed will point out the land intended to be assessed. Sec. 4285, Code 1906; Sec. 3775, Code, 1892; Dodds v. Marx, 63 Miss. 443.

In the record of the case of Reed v. Heard, 97 Miss. 743 (53 So. Rep. 400), it was agreed that there was a valid assessment of the land in controversy but in the record of this case there is no such agreement and there is no proof of an assessment of the land. But on the contrary there is proof that there was no assessment of the land on the assessment roll of 1900, under which the sale of this land was made on June 2, 1902. See page of the record, where the assessment roll was introduced by the defendant showing what lands in section 24, township 25, range 2 west, were assessed, the assessment as shown by the assessment roll being as follows: "To W. B. Buford, the west half of the northwest quarter west of Brake, section 24, township 25, range 2 west; to the Delta & Pine Land Co., southwest quarter and west half of southeast quarter and east half of northwest quarter, section 24, township 25, range 2 west; to J. F. Heard, northeast quarter and east half of southeast quarter, section 24, township 25, range 2 west, which is all the lands assessed in section 24, township 25, range 2 west."

From a careful perusal of the record it will be shown that there was no assessment of the land in controversy at the time the sale was made (the west half of the northwest quarter, east of the brake in section 24, township 25, range 2 west). If there was no valid assessment of the land, then there could have been no valid sale, for a valid assessment as well as a legal levy of taxes is necessary to the validity of a tax sale. "It is necessary

not only to have a proper levy of taxes, but it is essenfial to have a legal assessment of the lands upon which the levy is to operate. The assessment roll is the warrant of the tax collector for collecting the taxes; if that is void, his action in the sale of land under it is void.” Mullens v. Shaw, 77 Miss. 900; Brothers v. Beck, 75 Miss. 482.

It is argued by counsel for appellant that the introduction of the tax collector's deed in evidence made, under section 1983, Code of Mississippi 1906, a prima facie case, and that the introduction of the assessment roll by the defendant in the court below which shows no assessment of the land in controversy did not overcome the presumption that the land was properly assessed, because the statute further on provides that the land may be assessed by the sheriff, relying upon section 4320, Mississippi Code 1906.

It is true that the introduction of a tax collector's deed, under the section relied upon by counsel for appellant, would have made a prima facie case if the deed had not been void for want of description and the presumption would have been that there was a valid assessment of the land sold, until the land assessment roll was introduced by the appellee showing that there was no assessment of the land on the assessment roll, then, the burden shifted back to the appellant to show that same had been assessed by the sheriff, the prima facie case made out by the introduction of the tax collector's deed was overcome by the introduction of the land assessment roll which showed no assessment of the land in controversy.

Under the provisions of section 4320, Mississippi Code 1906, authorizing tax collectors to assess and collect taxes on land liable to taxation left unassessed by the assessor, etc., it is the duty of the tax collector that he shall report to the board of supervisors on making each monthly settlement, under oath, additional assess