Lewis v. Seibles

• Decision Date: 27 February 1888
• Court: Mississippi Supreme Court
• Parties: E. V. LEWIS

3 So. 652

65 Miss. 251

E. V. LEWIS v. C. L. SEIBLES

Supreme Court of Mississippi

February 27, 1888

APPEAL from the Circuit Court of Lincoln County, HON. J. B CHRISMAN, Judge.

Cornelia L. Seibles brought this action of ejectment against E. V Lewis to recover possession of a certain tract of land in Lincoln County, on Dec. 10, 1885.

On the trial in the court below the plaintiff introduced a tax collector's deed in the statutory form, of date, Feb. 1 1875, which purports to convey the land in dispute to her. The part of this deed necessary to be set out is as follows:

"THE STATE OF MISSISSIPPI, LINCOLN COUNTY.

I, A O. Cox, Tax Collector of Lincoln County, have this day according to law, sold the following lands, there being no other property found on which to levy and make the taxes due on said lands, to wit: E. 1/2 of S. E. 1/4, Sec. 4. T. 5, R. 2. East."

The deed contained no other or further description of the land. Upon this deed the plaintiff rested; and thereupon the defendant moved the Court to exclude the evidence of plaintiff, because of the description of the land in the deed being defective.

This motion was overruled.

The defendant offered in evidence (1) a deed of date Jan. 25, 1873, in which S. C. Weathersby purports to convey the land in dispute to Hiller & Levy; (2) a deed of date March 8, 1881, in which Hiller & Levy purport to convey this land to defendant; (3) a deed of date June 9, 1873, in which the Circuit Clerk of Lincoln County purports to convey the land in dispute to S. C. Weathersby, by virtue of the acts of 1872, and amendments thereto made in 1873, in relation to lands forfeited to the State for taxes. In connection with these deeds the defendant offered to show that he had been in adverse possession of this land more than three years since the Code of 1880 went into effect. On motion these deeds and this evidence were excluded. The defendant also offered in evidence a list of lands sold to the state in 1872, which list embraced the land in dispute. This list was excluded.

There was judgment for the plaintiff, and the defendant appealed.

Affirmed.

H. Cassedy, for the appellant.

1. The deed failing to show that the lands were situated in Lincoln County, was within and by itself insufficient to warrant a recovery in ejectment as expressly held in Hanna v. Renfro et al, 32 Miss. p. 125.

The form of a tax collector's deed and its character as evidence was the same when the case of Hanna v. Renfro occurred, as when the deed now under consideration was made. Both under Hutchinson's Code and the Code of 1871, the form of the deed is given in which a blank ("Here describe the land or other property"), ("Here describe the land") is left for a description of the property, and in both the deed is made prima facie evidence that the collectors complied with the law. Hutchinson's Code, page 190-191; Code of 1871, Sec. 1700, pp. 355-356.

A tax collector's deed is no better as a muniment of title than the deed of any other competent to convey, and it is just as essential that a correct description be given as in any other deed.

2. The evidence offered, the tax deed of the Circuit Clerk to Weathersby, made in June, 1873, the oral evidence that appellant had been in the actual occupation of the land mentioned in such deed, and under that deed since the adoption of the Code of 1880, constituted a complete defence and should have been admitted.

Section 539, Code 1880.

Three years' actual occupation by the express words of the Statute "shall bar any suit to recover such land." That appellee held under a tax title acquired subsequent to the one under which appellant held can work no exception in her favor. Her title was mature when the Code of 1880 went into effect, and the land being then adversely held by appellant under a former tax deed the Statute began to run as to her.

R. H. Thompson, for the appellee.

1. The motion to exclude the tax deed from evidence, because of assumption by the defendant that the deed fails to show in what county the land lies, was properly overruled. 1. The deed is in exact conformity to the statutory tax collector's deed prescribed in Section 1700 of the Code of 1871. Bell v. Gordon, 55 Miss. p. 45. Note the words in the deed, "according to law." In the second place, we say that the officer is authorized to sell lands for taxes only when the land lies in his county. Every presumption is that he would not undertake to sell lands lying outside of his county; and the deed, according to every fair construction, is evidence that the land was and is in the county of Lincoln. It is made prima facie evidence of the fact by the statute. Is not the presumption that an officer does his duty...