Smith v. Jassen

62 So. 172, 105 Miss. 227

• Court: Mississippi Supreme Court
• Decided: March 15, 1913
• Status: Published

Opinion

Smith, C. J.,

delivered tie opinion of tie court.

Tie court committed no error in permitting appellees to dismiss tieir bill in so far as it affected tie rights, of appellants. Belcher v. Wilkerson, 54 Miss. 677.

Tie cross-bill being a proceeding under section 550 of tie Code, instead of 549, it was unnecessary for it to contain an averment either that tie cross-complainants were in possession of tie land, or that tiere was no adverse occupancy thereof.

While it is true that tie delay of cross-complainants- in asserting tieir rights is great, tie cross-bill on its face states no facts bringing tie case- within tie rule governing lacies, as announced in Comans v. Tapley, 57 So. 567.

Tie cross-bill sufficiently avers tie payment of tie taxes on tiis land, for tie alleged nonpayment of whici it was sold, and under whici sale appellees claim title. This averment is as follows: ‘ ‘ Said cross-complainants charge, as they are informed and believe, that any taxes whici may have been due for tie year 1884 against said land were paid before tie time prescribed by law for the sale of land for delinquent taxes for tlie year 1884, directly or indirectly, by one F. Wasserburger for M. N. Smith; and they say that, if mistaken in this, they are informed and believe that any just and legal tax against said land for the year 1884 was within the prescribed time tendered or offered to the tax collector of Calhoun county then in office.”

This being true, it is unnecessary for us to determine whether or not the allegations of the cross-bill show that the law governing tax sales was not complied with. From these views it follows that the demurrer to the cross-bill should have been overruled.

Reversed and remanded, with leave for appellees to answer within thirty days after mandate filed in court below.

Reversed and remanded.