Russell v. McKinnon

104 So. 294, 139 Miss. 862, 1925 Miss. LEXIS 166

• Court: Mississippi Supreme Court
• Decided: May 25, 1925
• Docket: No. 24826.
• Status: Published

Opinion

Holden, P. J.,

delivered the opinion of the court.

The suit involves the question of title to forty acres of land described as northeast quarter of southeast quar ter, section 28, township 4, range 13 east, Jasper county, Miss., and was started by a bill in chancery filed by.appellant, Bettie Corrine Bussell, against J. T. McKinnon, appellee, to cancel claim of title, and to restrain appellee from cutting timber upon the land. The appellee filed an answer denying the allegations of the bill, and asked that the claim of title by the .appellant be canceled as cross-relief. Upon a final hearing of the cause, the chancellor denied the relief prayed for in the original bill, and granted the relief prayed for by cross-complainant, from which this appeal is prosecuted.

Briefly stated the case is this: The appellant Bettie Corrine Bussell claimed title by purchase from the state in 1917, arid alleging that the state acquired title to the land under a tax sale for the taxes of 1871, and also that the state acquired title to the land by a tax sale on May 10, 1875, under the provisions, of the act known as the Abatement Act, Laws 1875, p. .11.

The defendant below, appellee here, contested appellant’s claim of title upon several grounds, namely, that the land in controversy was not subject to sale for taxes in 1871 because it belonged to the Southern Bailroad Company in 1871, and was exempt from taxation by section 15, chapter 354 of the Laws of 1854, which granted to this railroad an exemption from taxation for a period of twenty years. And second, because the tax assessor of Jasper county did not file his roll with the board of supervisors on the first Monday in June, 1871, as was required by act approved May 11, 1871 (Laws 1871, chapter 38). And third, that as a matter of fact the land in controversy was not sold for taxes in 1875 under the said Abatement Act.

This court in the case of Mitchum v. McInnis, 60 Miss. 945, held that the tax sales in Jasper county in 1872 for the taxes of 1871 were void, because the roll was not filed on the first Monday in June, 1871. Furthermore, the sale of the land for taxes on April 1, 1872, was void, because the time for ■paying' taxes in Jasper county was extended to the first Monday in May 1872, by chapter 10 of the Laws of 1872.

The sale of the land in 1872 for the taxes of 1871 having been declared void as stated above, it is unnecessary for us to consider the other point as to whether or not the lands were exempt from taxation for the year 1871, on account of the exemption granted the Southern Railroad Company, which appears to have been the owner at that time.

The proof offered by the complainant below tending to show the sale of the lands in 18721 for the taxes of 1871 was rather indefinite and doubtful, but, conceding its sufficiency for the purpose it was offered, we do not hesitate to-say that the sale was void as held by this court in the above case. The record discloses that the appellee and his predecessors in title have owned the land for about fifty years, and have paid taxes thereon during this time.

The claim of title by appellant on account of the alleged sale in 1875 for the taxes of 1874 under the Abatement Act is without merit, because the chancellor held as a matter of fact “that said lands were not sold by the tax collector of Jasper county, Miss., on May 10', 1875, under the Abatement Act of 1875.”

It appears that, on the hearing of the cause, the chancellor carefully examined, with a magnifying glass, the list containing the lands sold in Jasper county on May 10, 1875, under the Abatement Act, and he found that the figure “9” in section “29” had been changed, or forged, to the figure “8,” so as to make the section road “28” instead of “29” on the record in the chancery clerk’s office. The chancellor was well warranted in finding the fact to be that the land here in question, viz., the forty acres in section 28, was not sold for taxes in 1875 under the Abatement Act but, that it was land in section 29 that was thus and then sold, as appears from the list and the records in the chancery clerk’s office. Therefore the state obtained no title to the land by the tax sale in 1875 under the Abatement Act, consequently, the title of the appellee, obtained through mesne conveyances from the Southern Railroad Company, to the land here involved is valid, and the claim of title by the appellant is wholly without merit.

In view of these conclusions, the decree of the lower court is affirmed.

Affirmed.