State v. Allen

27 So. 2d 695, 200 Miss. 494, 1946 Miss. LEXIS 314

• Court: Mississippi Supreme Court
• Decided: October 28, 1946
• Docket: No. 36172.
• Status: Published

Opinion

Alexander, J.,

delivered tbe opinion of tbe Court.

Appellee filed her bill against the State to confirm its tax patent to tbe following lands in Marion County: SE14 of SWü of Section 1, Township 1 North, Range 13 East. Code 1942, Section 1315. Tbe answer of tbe State set up as a defense only tbe alleged failure of tbe applicant for its purchase to swear to tbe facts stated in tbe application. See Code 1942, Section 4079. Tbe answer was made a cross-bill praying cancellation of tbe patent. Appellee obtained title by mesne conveyance from the patentee whose patent was dated August 18,1936.

Tbe latter statute requires “Each such application shall be properly sworn to before an officer authorized to administer oaths.” No fraud or misrepresentation is alleged. Tbe fact of tbe oath was tbe sole issue.

Upon tbe record shown by tbe testimony, the chancellor was justified in finding that tbe applicant did make oath thereto. Tbe application, however, does not show tbe jurat of tbe notary. Tbe statute does not specifically re quire that such attestation he a prerequisite, although of course its execution by the Land Commissioner ought to have been effected by him as conclusive evidence of the fact of the oath. The fact that the answers elicited by the application were sworn to in fact meets the requirements of the statute. That which was omitted to be done rested upon the State’s officer and agent. It may not be charged against the patentee nor his grantee. Dunlap v. Clay, 65 Miss. 454, 4 So. 118; Hartsell v. Myers, 57 Miss. 135; Atwood v. State, 146 Miss. 662, 111 So. 865, 51 A. L. R. 836.

We find it unnecessary to consider whether Code 1942, Sections 1317 and 1321, would validate the patent despite the omission of the Land Commissioner.

Affirmed.