McGehee v. Martin

53 Miss. 519

• Court: Mississippi Supreme Court
• Decided: October 15, 1876
• Status: Published

Opinion

Chalmers, J.,

delivered the opinion of the court.

Inasmuch as the plaintiff in ejectment must show title in himself at the termination as well as at the institution of the suit, the defendant in the case at bar introduced in evidence a tax-collector’s deed, showing that the land in controversy had been sold for unpaid taxes pending the litigation.

This deed was void upon its face, and should have been excluded; it showed a sale by the tax-collector, made on 7th of August, 1871. By the act of March 3, 1871 (p. 759), the first Monday of July was fixed as the day for selling lands delinquent for taxes, and by subsequent act of May 4 (acts of 1871, p. 690), the day of sale was postponed thirty days. The first Monday in July, 1871, was the third day of the month. Thirty days thereafter would be the 3d of August, which is the day on which the sale should have taken place. It is well settled that a tax sale made on the wrong day confers no title. Tebault v. Britt, MS.

We must think that the improper admission of the deed, accompanied as it was by an instruction informing the jury of the necessity that the plaintiffs should have title at the time of verdict rendered, controlled the result, since upon the other questions litigated the weight of evidence seems to be with the plaintiffs.

Under the decision in Jacks v. Bridewell, 51 Miss. 881, the testimony of the defendant Martin is of very questionable admissibility, but no objection having been made to it in the court below, we cannot notice it here.

Judgment reversed and new trial awarded.