McLemore v. Scales

• Decision Date: 02 February 1891
• Citation: 8 So. 844,68 Miss. 47
• Court: Mississippi Supreme Court
• Parties: A. G. MCLEMORE ET AL. v. R. W. SCALES

8 So. 844

68 Miss. 47

A. G. MCLEMORE ET AL. v. R. W. SCALES

Supreme Court of Mississippi

February 2, 1891

October 1890

FROM the circuit court of Leflore county, HON. J. B. CHRISMAN Judge.

This suit in ejectment was instituted April 5, 1888, by A. G McLemore, Mary A., M. F. and T. De Graffenreid against appellee, to recover possession of 160 acres of land. Plaintiffs, except McLemore, are children and heirs of one M T. De Graffenreid, the original owner and patentee of the land, who died leaving eleven children. McLemore has obtained the title of all the heirs except his co-plaintiffs.

Defendant relies upon the tax collector's deed to one Gardner and himself, their subsequent recovery of the land in an action of unlawful detainer and the conveyance to himself by Gardner of his one-half interest. The land was sold in March, 1884, for the taxes of 1883, and purchased by Gardner and Scales. On March 25, 1885, they instituted an action of unlawful detainer against one Bowles, who was in possession as tenant of De Graffenreid. A warrant for the defendant Bowles was issued and served, returnable April 4, 1885, on which day he appeared at the office of the justice of the peace who issued the warrant, but there being no other justice present the cause was postponed to a day one week later. The defendant made no objection to this course, but on the day appointed he again appeared, and the justice who issued the warrant having procured the attendance of another justice, the two organized the special court provided for by § 2651, code 1880, and the cause was proceeded with and judgment entered for plaintiffs, the defendant interposing no defense.

Plaintiffs objected to the introduction, on the trial of the ejectment suit, of the affidavit, warrant and proceedings in the action of unlawful detainer, because the warrant showed on its face that the return day, as originally written in it, had been changed to the date to which the trial had been postponed, and no new warrant had been issued. The objection was overruled and the record permitted to be read in evidence. Plaintiffs, however, were permitted to show, and did show by the duplicate or stub tax receipt in the sheriff's office, that the taxes for 1883, for which the land was sold, had been paid before the sale.

Appellee also defended as to ten-elevenths of the land under his purchase thereof at a commissioner's sale under a decree of the chancery court of Leflore county rendered in an attachment proceeding in that court against the ten adult heirs of M. T. De Graffenreid; but as the opinion of the court is made to turn upon the validity of the tax title, it is not deemed necessary to set out the cause in any other aspect.

It is contended on behalf of appellee that the recovery in the action of unlawful detainer is a bar to any future assailment of the title by virtue of § 538, which is as follows:--

"The purchaser of land at a sale for taxes, after one year from the date of his purchase, and within two years from such date, and his vendee, shall be entitled to bring the action of 'unlawful detainer' for the recovery of possession of such land; and a judgment in his favor in said action shall be a bar to any action in any court brought after one year from such judgment, to controvert the said title to said land."

By agreement, the case was tried without a jury, and the court was of the opinion that the tax-sale and the subsequent proceedings by the purchaser to recover possession were void, because the taxes had been paid before the sale, but that the title acquired by appellee at the sale under the chancery decree was valid. It therefore gave judgment for plaintiffs for one- eleventh of the land, and for defendant for ten-elevenths, and from this judgment plaintiffs have appealed, and defendant prosecutes a cross- appeal.

Judgment reversed and cause remanded.

J. E. Gwin, for appellant.

Sec. 538, code 1880, can have no application to cases like this where the taxes for which the land was sold had been paid before the sale. The action of unlawful detainer is given only to a purchaser of land at a sale for taxes. The statute cannot apply if there were no taxes due. The delinquency is the foundation of all right of action and all claims of title. Without it, the deed and proceedings under the pretended sale are void.

The writ in the unlawful detainer suit does not correspond with the minutes of the court. The return day had been altered to conform to the day of judgment. The writ and judgment were therefore void and fraudulent on their face.

Rush & Gardner, for appellee.

The judgment in unlawful detainer is conclusive of the title. Code 1880, § 538. Unless there are errors in that suit that render the judgment void, it will not be subject to this collateral attack. The change in the appearance day on the writ amounts to nothing. The defendant appeared on the return day and when the cause was continued again voluntarily appeared. As one year elapsed after the recovery in unlawful detainer before this suit was brought, the attack upon the title must fail. Accordingly, Scales is owner and should have been awarded the entire interest in the land.

OPINION

CAMPBELL, J.

The sale for taxes on March 3d, 1884, and the subsequent recovery in an action of unlawful detainer, in...