Love v. Barron

20 So. 2d 97, 197 Miss. 231, 1944 Miss. LEXIS 290

• Court: Mississippi Supreme Court
• Decided: December 22, 1944
• Docket: No. 35742.
• Status: Published

Opinions

Bill was filed by appellants to cancel as a cloud upon their title to certain lands in Lamar County a certain tax patent issued by the state to appellee. The cause was heard upon answer and the bill dismissed. The testimony which was chiefly documentary discloses no factual issues and is therefore not discussed.

The lands involved are described as "The West-half of the SE 1/4 and all that part of the S 1/2 of SW 1/4 lying East of the Public Road known as the U.S. Highway No. 11 often referred to as the Jackson Highway, all in Section 4 Township 3 North Range 14 West." The complainants deraigned title from the Government and set out the sale thereof to the state for delinquent taxes in April, 1932, for the taxes due the preceding year. The property was part of a larger tract of contiguous lands which were separately assessed in three parts to Scanlan and Semmes, and the list of such sales certified to the state shows that there were three separate sales thereof to the several portions, such sales being numbered 4136, 711 and 4210, respectively. It was thus sufficiently shown that the applicable statute, Code 1930, sec. 3249, was not followed and that the sale was void. Leavenworth v. Claughton (Miss.), 19 So.2d 815. It is not seriously contended that there was sufficient actual occupancy by the patentee to invoke Code 1930, section 2288. See Cox v. Richerson, 186 Miss. 576,191 So. 99, 124 A.L.R. 1138; Grant v. Montgomery, 193 Miss. 175, 5 So.2d 491; Smith v. Anderson, 193 Miss. 161,8 So.2d 251.

Appellee contends, however, that it was incumbent upon the appellants as complainants in the court below to show and recover, if at all, upon the strength of their own title, and that it was shown by the defendant's testimony that one link in the chain of title was an invalid trustee's deed. The alleged infirmity was sought to be shown by the provisions of a foreclosed deed in trust, whereby deferred installments were subject to the right of acceleration which had been exercised and which, because of a prior abortive attempt to foreclose, where not properly so foreclosed until after bar by limitations. Such alleged facts would not render the trustee's deed void but at most voidable only, and upon an affirmative defense by a party thereto. The deraignment showed that the trustee's deed "passed title in form at least" to Scanlan and Semmes, appellants' predecessors in title, and the appellee as a third party is not in a position to raise the point. House v. Gumble Co., 78 Miss. 259, 29 So. 71; Reliance Inv. Company v. Johnson, 188 Miss. 227, 193 So. 630, 194 So. 749.

We are of the opinion, therefore, that the learned chancellor was in error in dismissing complainants' bill, and that the decree must be reversed and entered here awarding appellant the relief prayed for. In view of the necessity for stating an account between the parties for taxes paid on said lands in the interim by appellee and for such purpose only, the cause is remanded.

Reversed and remanded.