Smith v. W. Denny & Co.

Citation90 Miss. 434,43 So. 479
Decision Date22 April 1907
Docket Number12,721
PartiesA. H. SMITH v. W. DENNY & COMPANY
CourtUnited States State Supreme Court of Mississippi

FROM the chancery court of Jackson county, HON. THADDEUS A. WOOD Chancellor.

Smith the appellant, was complainant in the court below; and W Denny & Company, a corporation, and others, the appellees were defendants there. From a decree dismissing the bill complainant appealed to the supreme court.

Appellant filed his bill in chancery in June, 1905, claiming title to land sold to him March 3, 1902, for the taxes of 1901. The bill alleged that the appellee, W. Denny & Company, was, in so far as appellant could with due diligence ascertain, the only other person having or asserting any interest, legal or equitable, in the land, and made the appellee, and all unknown persons who might claim a legal or equitable interest therein parties defendant. It prayed for confirmation of the tax title, and for cancellation of any claim to the land appellee might assert and of all other outstanding titles to the land in conflict with appellant's. His tax deed, an exhibit to the bill, described the land as "situated in said county and state, and assessed to Wm. F. Allman, to-wit: S. 1/2 of N.W. 1/4 of section 12, township 3, range 6, west."

A demurrer to the bill was sustained, and, as appellant declined to amend, the court below dismissed the bill.

Code 1892, § 498 (Code 1906, § 548), provides that in all suits to confirm tax titles the names and places of residence of all persons interested in the land, so far as known to complainant or so far as he can ascertain by diligent inquiry, must be stated in the bill, and such persons be made parties defendant thereto.

Decree affirmed.

Sanders & Dudley, for appellant.

The bill seeks a confirmation against the only person claiming the land adversely to appellant, so far as appellant knows or can with due diligence ascertain. Nowhere does the statute, Code 1892, § 498, require the joinder of persons unknown to the complainant. It merely permits it. The construction placed upon the statute by the lower court is strained and not warranted by the language of the statute.

We call the court's attention to Code 1906, § 548, which is identical with Code 1892, § 498, providing the method to be pursued in suits for confirmation of tax titles. What sort of deraignment is there required? The statute merely declares that the complainant "shall set forth his claim under the tax sale," which is the deraignment required by the statute.

Code 1892, § 1806 (Code 1906, § 1983), declares that the tax collector's deed shall raise the presumption "that the assessment and sale of the land were legal and valid." This court has repeatedly construed the statute to mean that an allegation of the tax sale, in a bill to confirm a tax title, is sufficient deraignment, making a prima facie case on the issue involved. Belcher v. Mhoon, 47 Miss. 613; Griffin v. Dogan, 48 Miss. 17; Meeks v. Whateley, 48 Miss. 337; Coffee v. Coleman, 85 Miss. 14, S.C., 37 So. 499.

Denny & Denny, for appellee.

Code 1892, § 498 (brought forward as Code 1906, § 548), under which this suit was instituted, provides, among other things, that a complainant in suits of the character of the case at bar, shall set forth in his bill his claim under the tax sale, and the names and places of residence of all persons interested in the land, so far as known to complainant, or as he can ascertain with diligent inquiry; and the code section concludes with the provision that the decree of confirmation authorized thereby shall, when rendered, be held as conclusive evidence that the title to the land involved has become vested in the complainant as against all persons claiming the same under title existing prior to the sale thereof for taxes.

The tax deed under which appellant claims title, and which is made a part of the bill of complaint as an exhibit thereto, discloses the fact that when appellant bought the land at the tax sale, it was assessed to one Wm. F. Allman. Yet, notwithstanding this recital in the deed, and notwithstanding the requirement of Code 1892, § 498, that all known claimants to the land shall be made parties defendant in the bill for confirmation, appellant refused or neglected to make Wm. F. Allman a defendant, and failed to show why this person was omitted from the bill. The bill moreover failed to show whether appellee did or did not claim title under Allman, and also failed to show that appellee does not claim title under appellant.

It must be inferred that Allman was a claimant of the title of the land when sold.

The long-established rule of practice and pleading is that the complainant must set forth in his bill for confirmation of the tax sale all the essential facts to be considered in the case and on which issue may be taken. In bills to confirm title to real estate, Code 1892, § 501 (Code 1906, § 551), requires the complainant to set forth the deraignment of his title, and must show as perfect a title, legal or equitable, as would enable him, if the title were a legal one, to recover against the defendant in an action of ejectment. Chiles v. Gallagher, 67 Miss. 413; Jackson v. Bank, 85 Miss. 645, S.C., 38 So. 35; Long v. Stanley, 79 Miss. 298, S.C., 30 So. 23; Wilkinson v. Hiller, 71 Miss. 678, S.C., 14 So. 442. The appellant's bill fails to set forth all the facts constituting the right of the tax collector to make the sale, hence the decision of the lower court was correct. Peterson v. Kittridge, 65 Miss. 33, S.C., 3 So. 65, 5 So. 824; Pearce v. Perkins, 70 Miss. 276, S.C., 12 So. 205; Gregory v. Brogan, 74 Miss. 694, S.C., 21 So. 521; Bynum v. Stinson, 81 Miss. 25, S.C., 32 So. 910.

OPINION

MAYES, J.

The bill of complaint filed in this cause is demurred to because as stated in the demurrer, "complainant merely states a conclusion of law when he avers that the tax sale, under which he claims title to the land in controversy, was legal and valid, instead of alleging the instances of and specifically setting forth all the facts necessary to constitute a valid sale of the land by the tax collector"; and, secondly, because "complainant has not in his bill stated such a cause as entitles him to the relief sought." If the bill of complaint be treated as a proceeding under § 498 of the Code of 1892, instituted for the purpose of confirming a tax title, it is imperfect in that the owner of the land at the...

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18 cases
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    • United States
    • Mississippi Supreme Court
    • April 19, 1937
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