Morgan, Robertson & Co. v. Blewett

• Decision Date: 27 May 1895
• Citation: 72 Miss. 903,17 So. 601
• Parties: MORGAN, ROBERTSON & CO. v. T. G. BLEWITT, SR
• Court: Mississippi Supreme Court

17 So. 601

72 Miss. 903

MORGAN, ROBERTSON & CO. v. T. G. BLEWITT, SR

Supreme Court of Mississippi

May 27, 1895

FROM the circuit court of Lowndes county, HON. NEWNAN CAYCE Judge.

Action of ejectment by Morgan, Robertson & Co., claiming under a tax title, against appellee, Thomas G. Blewitt, Sr., former owner of the land. Judgment for defendants. Plaintiffs appeal. The facts touching the only questions passed upon by the court sufficiently appear in the opinion.

Reversed and remanded.

J. A Orr, for appellants.

1. It was manifest error to hold that a defendant in ejectment can interpose an equitable defense. This was permissible under the code of 1857. There are some dicta to the contrary, but in a review of our decisions we find they are uniform in holding such a defense cannot be maintained, with perhaps the single exception that where a mortgage has been paid off, the mortgagor can defend against the mortgage title. Thompson v. Wheatley, 5 Smed. & M., 499; Moody v. Farr, 33 Miss. 192; Rice v. Wright, 46 Ib., 679; Lockhart v. Camfield, 48 Edwards, 15 So. 42. Ib 470; Edwards v.

2. The objection that the assessment roll of 1883 was not filed on or before the first Monday of July, as required by § 499, code 1880, is untenable. The seeming irregularity touching the assessment roll is satisfactorily explained in the record. Defendant offered no evidence except the roll itself and the minutes of the board of supervisors, and these do not show when it was filed. The indorsement, "Filed August 23, 1883. W. C. Bishop, Clerk," does not explain what was filed. It was not the duty of the clerk to make such unexplained indorsement, or any indorsement. If it had reference to the roll, it meant the second filing of the roll after being completed pursuant to the order of the board. The roll was delivered to the board prior to the August term. At that term it proceeded with the equalizers to equalize the assessments. The roll was delivered to the assessor to complete, and at the September term of the board the minutes show it was approved. Osburn v. Hide, 68 Miss. 45, presents a case very different from this.

George A. Evans, on the same side.

1. That a failure to deliver the rolls at the proper time renders the assessment void, is not denied; but the fact of such nondelivery is not shown in this case. The statute itself makes the deed prima facie evidence that the assessment and sale were legal. Code 1880, § 526; Lochte v. Austin, 69 Miss. 271. The inference that, because the roll is filed August 23 and the oath of the assessor is dated September 4, 1883, the roll has not left the possession of the assessor before that, is wholly unwarranted, and is completely destroyed by order of the court made August 15. It is certain that on August 6 the board was in possession of the roll, and proceeded to examine it and equalize the assessments. The law did not require the time of the delivery to be noted or the roll to be marked filed. Mills v. Scott, 62 Miss. 525; Grayson v. Richardson, 65 Ib., 222. See, also, Corburn v. Crittenden, 62 Ib., 125. The absence of the affidavit when the roll was filed, does not affect its validity, if approved by the board. Grayson v. Richardson, supra.

2. It was error to allow evidence to show equitable title as a defense to the ejectment suit. Thompson v. Wheatley, 5 Smed. & M., 499; Dixon v. Porter, 23 Miss. 84; Heard v. Baird, 40 Ib., 793. In Moody v. Farr, 33 Ib., 192, the case of Brown v. Weast, 7 How., 181, seeming to hold a contrary doctrine, was overruled. See, also, Lockhart v. Camfield, 48 Miss. 470; Rice v. Wright, 46 Ib., 679; Bonner v. Lessley, 61 Ib., 392, which did not involve an equitable title to land, but the right of a party as the equitable assignee of a debt. Land v. Keirn, 52 Miss. 341, was not decided on the ground that defendant had the equitable title, but that plaintiffs were shown not to have a legal title. See, also, Edwards v. Edwards, 15 So. 42.

Thomas J. O'Neill, for appellees.

1. An equitable defense is available in an ejectment, the only condition being that the equitable right must be such as to entitle defendant in a court of equity to have the legal title divested and vested in him. Lockhart v. Camfield, 48 Miss. 470; Land v. Keirn, 52 Ib., 341; Chiles v. Gallagher, 67 Ib., 413. That an equitable estoppel is available at law, see Herman on Estoppel, § 611; Bigelow on Estoppel, 476, 599; Sedgwick & Wait, Trial of Title to Land, 713; 49 Mich. 125.

That Claude Blewitt was disqualified to buy at the tax sale, see Faison v. Johnson, 70 Miss. 214.

2. The tax title is void for lack of a valid assessment, the law requiring the completed roll to be filed with the board of supervisors on or before the first Monday of July, and to remain on file until the first Monday in August following. This was to allow opportunity for filing objections. Code 1880, § 499. The only evidence of such filing is the entry on the minutes August 23, 1883, nearly two months after it should have been filed. Even then the roll did not have the affidavit of the assessor, which was not made until September 4, 1883. The entry of the board at the August term affirmatively shows that the roll was in an incomplete condition, and instructed the assessor to finish the roll. The subsequent entry, at the September term, was that the assessor had completed the roll. This posthumous approval could not give it validity. There was no order approving the roll when the changes were made, and no order requiring the clerk to certify copies to the auditor. Davis v. Vanarsdale, 59 Miss. 367; Carlisle v. Chrestman, 69 Ib., 392; Carlisle v. Goode, 71 Ib., 453.

Linton D. Landrum, on the same side.

There is a distinction between an equitable charge and an equitable title. The former cannot be set up by defendant in ejectment, while the complete equitable title may be. Bonner v. Lessley, 61 Miss. 392. We submit that the evidence shows a complete equitable title in the defendant. The purchaser at the tax sale was disqualified to buy and set up an adverse title. On his purchase, he became a trustee of the legal title for defendant. Plaintiff himself recovered on the strength of his own title. The first link of the title relied on is a tax deed, which, it is shown, is void. For that reason, he cannot recover. On this point see Land v. Keirn, 52 Miss. 341; Broom's Com. on Com. L., 177; Coke on Littleton, 235.

Argued orally by J. A. Orr, for appellants, and L. D. Landrum and Thomas J. O'Neill, for appellee.

CAMPBELL, Special Judge. WOODS, J., being absent on account of sickness, took no part in this decision. J. A. P. Campbell, Esq., a member of the bar, under appointment, sat in his place.

OPINION

CAMPBELL, Special Judge.

The general instruction for the defendant was given upon the assumption that the tax sale of March, 1886, which is the foundation of the plaintiff's title, was void because of the want of a legal assessment. The assessment was in 1883. It is not shown when the assessment roll was delivered to the clerk of the board of supervisors. There is no evidence on the subject, and the presumption will be indulged that it was delivered to the clerk at the proper...