Brothers v. Beck

75 Miss. 482

• Court: Mississippi Supreme Court
• Decided: December 15, 1897
• Status: Published

Opinion

Woods, C. J.,

delivered the opinion of the court.

This was an action of ejectment instituted by appellants against appellee for the recovery of' the land named in the declaration. By an examination of the transcript before us, we see that the right of the appellants to a recovery rested upon a sale of the lands for nonpayment of taxes, on March 7, 1887, and the validity or invalidity of the title of appellants acquired under that sale involved the vital point in the case.

From the minutes of the board of supervisors, from the roll itself, and from the evidence of the witness, Dan McAuley, the deputy assessor who made out the roll, it is made certain that the roll was not received and approved by the board of supervisors in July, the time required by law. It is equally certain that the roll was not received and approved by the board of supervisors at the August term of that body, as, by the curative act of March 12, 1884 (acts of 1884, p. 14), the board was authorized to do. In fact, it abundantly appears, from the evidence referred to, that the roll was only received and approved by the board at its September meeting. The curative act had no effect, therefore, because of a failure of the board to act as directed by the terms of the act itself. See Osburn v. Hyde, 68 Miss., 45, which is precisely in point.

It is earnestly contended by the learned counsel for appellant, however, that if the view which we have taken of the invalidity of the tax sale of March 7, 1887, be the correct view, still that question was settled by a decree of the chancery court in the case entitled Cordelia Jones et al. v. A. E. Randle et al., and that the record in that suit was improperly excluded by the court below upon the hearing of this cause below.

The facts, as we gather them from the transcript, on this point are that J. J. Beck, the appellee here, became sole complainant in the chancery proceeding, and obtained leave to amend the original bill, and did actually amend the bill so as to charge the invalidity of the tax title acquired under the sale of March 7, 1887; but this very important amendment was, by the chancery court, stricken out, on motion of his adversary’s counsel. With this vital question thus eliminated from the equity litigation,- the bill of Beck, on demurrer thereto sustained, was dismissed. On what one or more of the many grounds of demurrer the chancery court thought the bill bad, we find it unnecessary to inquire, for, whatever the views of the chancellor as to the bill, and whatever the reasons for his action in sustaining the demurrer and in dismissing the bill, the invalidity of title under the tax sale of March 7, 1887,-was not involved, because, in striking out of the bill the averment of this invalidity, that question neither was nor could have been adjudicated. The validity of the tax deed is here for the first time presented, and the court below properly excluded the chancery record when offered to show that this controversy was res adjudicata.

Affirmed.