Bush v. Williams

• Decision Date: 01 January 1813
• Citation: 3 Tenn. 360
• Parties: BUSH v. WILLIAMS et al.
• Court: Tennessee Circuit Court

3 Tenn. 360

BUSH

v.WILLIAMS et al.

Circuit Court, D. Tennessee.

1813.

This was an action of ejectment for a tract of land lying in the county of Smith. The plaintiff introduced a grant from the state of North Carolina to William Bush, the ancestor of the present lessors, for the land now in controversy, and proved that the defendants were in possession at the time of the service of the declaration in ejectment. The defendants claimed the land under a sale for the revenue tax, to John C. Hamilton, by the order of the county court of Smith. The record stated that at the June term, 1806, William Douglass, late sheriff and collector of the revenue tax for the year 1803, reported to that court that there were two thousand five hundred and sixty acres of land belonging to William Bush's heirs, upon which the tax of 1803 had not been paid, and that there was no goods or chattels out of which he could make the amount. The court thereupon ordered that the land should be advertised, once in the Gazette of the public printer, and twice in the Gazette published in the district where the land lay; and the record further showed that publication was accordingly made.

Grundy and Cooke, for plaintiffs, argued that the record ought not to be received as evidence: First, because the heirs of William Bush were not named in the proceedings, nor was any description given of the land to supply that defect; second, because the report to the county court of Smith was made by the late sheriff and collector, whereas it ought to have been made by the one in office at the time the report was made; and, third, because the record showed that publication had been made in the Gazette of the public printer but once, when the law requires that it should be made twice.

Haywood and Whiteside argued for defendants that there was no necessity to name the heirs. The tax is a lien upon the land, and the real owners of it knowing the tax ought to be paid, should have come forward and prevented the sale by a payment of what was due. A scire facias may issue against persons without naming them, nor otherwise referring to them, except by description, as against the executor of A., without naming him. So it may issue against terre tenants. 5 Com. Dig. 3 L. 3. As to the other two objections, which refer only to matters which should have been done before the judgment was entered up, no serious difficulty can exist. The matter before the county court was that over which they had...