Shackelford v. Brown

Decision Date29 October 1894
Citation72 Miss. 380,17 So. 896
CourtMississippi Supreme Court
PartiesM. S. SHACKELFORD v. L. E. BROWN

FROM the chancery court of Lauderdale county, HON. W. T. HOUSTON Chancellor.

For the facts, reference is made to the opinion.

Decree affirmed.

Witherspoon & Witherspoon, for appellant.

The only fraud alleged is the violation by Stroud of his contract to pay the taxes. It was the duty of appellee to pay taxes on her own land, and the alleged agreement was to answer for the debt of another, and was within the statute of frauds. Again it is to be construed as an agreement to pay the taxes subsequent to 1875, which was an agreement not to be performed within a year, and was therefore void, because not in writing. The agreement, being a nullity, did not disable Stroud from purchasing at tax sale.

If Stroud agreed to pay the taxes on appellee's land, it must have been the intention that this should only continue until the mistake should be corrected by a new assessment or by the board of supervisors. The mistake in the roll of 1875 cannot continue longer than the roll itself. It is shown by the evidence that McLemore himself expected that Stroud would correct the mistake at the next assessment.

The testimony of McLemore, if true, is insufficient, because the law requires two witnesses, or one witness and corroborating circumstances, to overthrow a denial of the answer. Code 1892, § 535; Snell v. Fewell, 64 Miss. 655. It is not contended that there are two witnesses to prove the fraud, and there are no circumstances which corroborate the testimony of McLemore. The fact that the erroneous assessment continued, and that, for several years, appellee paid the taxes on the wrong land, would seem to prove that, during that period, she did not know the land belonged to Stroud. It is much more reasonable to suppose that the land was permitted to stand so assessed because she was ignorant of the fact that it did not belong to her. It is true the mixed condition of the assessment was an appropriate subject-matter for such a contract as is attempted to be proved, but is not corroborating evidence that the contract was made. The corroboration is rather in support of the denials of the answer.

J. S Hamm, for appellee.

Stroud was bound, by his agreement, to pay the taxes on the land and was disabled from buying it at tax sale. Rule v. Broach, 58 Miss. 552; Holmes v. McGehee, 63 Ib., 50; Chiles v. Gallagher, 67 Ib., 413; Faison v. Johnson, 70 Ib., 219.

As Stroud got no title, his conveyance of his title to Mrs. Shackelford gave her no title. Besides, Mrs. Brown was in possession of the land all the time, and this was notice of her title.

OPINION

COOPER, C. J.

This is a bill exhibited by the appellee against the appellant seeking cancellation of a hostile title asserted by appellant to the southwest quarter of northwest quarter of section nine, township six, range sixteen, east, in Lauderdale county. The complainant alleges that she is the real owner of said lands, and that, in the year 1875, one Stroud, the father of the defendant, was the owner of the southeast quarter of northwest quarter of said section; that, by accident and mistake, in said year the land of appellant was assessed to Stroud and his land was assessed to her "that this mixed condition of the assessment rolls was first discovered by Stroud, complainant being ignorant of such fact until it was made known to her by Stroud; that at the time he made such fact known to her, which was soon after the assessment of 1875, he proposed to complainant to let it stand just as it was on the assessment rolls, and that he, the said Stroud, would pay on complainant's land and requested complainant to pay on his land, and complainant, never suspecting any wicked or fraudulent purpose or design on the part of said Stroud, and said lands being adjoining and of equal value, the taxes being the same on each subdivision, consented to such proposition and did in fact pay the taxes on the land of said Stroud until the year 1882." The bill then alleges that Stroud, in fraud of complainant, permitted and procured the land of complainant to be sold for its taxes on the fifth of March, 1879, and bought it in at such sale; that she never suspected any scheme, trick or fraud on the part of Stroud until the year 1882, when he notified complainant of the sale for taxes of her land and his purchase thereof, and forbid her to exercise any act of ownership over the same; that she has remained in possession of the land until the filing of this bill.

By another averment of her bill the complainant charged "that she had lived near the said Stroud as a neighbor and had known him well and favorably, as she thought, for a great many years prior to this agreement as before stated, and she had implicit confidence in him, as he well knew, and, to carry out the nefarious scheme and make his fraud complete, he frequently mentioned to complainant the error of the assessor, and always stated that he was carrying out his part of the agreement in good faith; and, even as late as the spring of 1882, a long time after said land was sold, he talked about it and made the impression upon complainant that he was paying taxes on her land as she was paying on his."

It is further charged that, in December, 1882, Stroud conveyed the land to the defendant, who is his daughter; that, though the deed recites the consideration paid by the defendant to have been one hundred and fifty dollars, the conveyance was in fact voluntary, and made by Stroud in the distribution of his estate among his children. The bill is not sworn to, nor is the answer of the defendant under oath waived. The defendant filed a sworn answer, by which she denies that complainant is the owner of the land described in her bill, and denies that she is in possession of the land, but avers that Stroud, soon after his purchase at tax sale in the year 1879, entered into possession of said land, and that he and she, the defendant, as his vendee, have since "held the open, exclusive, peaceable, continuous and adverse possession thereof" for more than ten years, and she pleads her title so acquired against the assertion of complainant's title. The defendant admits that the land was assessed to Stroud in the year 1875, but says that, on the roll made in 1878, they were assessed to "unknown owner," and this assessment she charges was made, not through accident or mistake, but because complainant did not give in the land to the assessor, and because she did not own it. She admits that Stroud owned the southeast quarter of northwest quarter of the same section, and that it was by mistake assessed to complainant. Answering that clause of the bill hereinbefore first quoted, she says she "does not know, nor is she informed, nor has she any means of information, whether the said Stroud or complainant first learned that said land was assessed to complainant; but the defendant denies that said Stroud did, soon after the assessment of 1875, or at any other time, propose to complainant to let the assessment of said lands stand just as they then stood on the assessment rolls, and that he would pay the taxes on complainant's land, and requested complainant to pay on his said land, and that any wicked or fraudulent design ever actuated said Stroud to say or do anything with reference to said land and the taxes thereon." The defendant then proceeds to set forth that, on the roll of 1875, the taxes on complainant's land was twenty per cent. higher than on Stroud's land, and on that of 1878 fifty per cent. higher. She denies "that the said Stroud knew of any agreement on his part with the complainant to pay the taxes on said land, and that complainant was relying upon him to pay said taxes, and that he permitted and procured, by fraud and wickedness or otherwise, said land to be sold for its taxes on March 5, 1879.

Replying to that clause of complainant's bill secondly above set forth, she says: "The defendant admits that the complainant lived near the said Stroud as a neighbor, and had known him well and favorably for a great many years prior to said pretended agreement, and that she had implicit confidence in him."

There were several amendments made by complainant to her bill, none of them being under oath, and none of them waiving an answer under oath, to all of which the defendant replied by sworn answer. No matter material to the question now involved was set up in said amendments.

The fact that Stroud did make the precise agreement set up by the complainant is distinctly...

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4 cases
  • Lindeman's Estate v. Herbert
    • United States
    • Mississippi Supreme Court
    • 19 Febrero 1940
    ... ... Waller v. Shannon, 53 Miss. 500; Saffold v ... Horne, 72 Miss. 470, 18 So. 433; Kyle v ... Rhodes, 71 Miss. 487, 15 So. 40; Shackelford v ... Brown, 72 Miss. 380; 1 A. L. R. 48, 77, 105, 106; ... Murray v. Johnson, 1 Head. 35; Bellows v ... Stone, 18 N.H. 465; Brown v. Mortgage ... ...
  • Fant v. Fant
    • United States
    • Mississippi Supreme Court
    • 10 Junio 1935
    ...belief is not a sworn bill within the meaning of that statute. Toulme v. Clarke, 64 Miss. 471; Snell v. Fewell, 64 Miss. 655; Shackelford v. Brown, 72 Miss. 380; v. Van Rheimsdeek, 9 Cranch 153, 3 L.Ed. 688; Griffith's Chancery Practice, page 628; Carrick v. Prater, 10 Humph, 270; Spurlock ......
  • Stuckey v. Provident Bank
    • United States
    • Mississippi Supreme Court
    • 17 Marzo 2005
    ...SMC were automatically stayed. 4. The only case decided by this Court in which the term "in equilibrio" is used is Shackelford v. Brown, 72 Miss. 380, 17 So. 896, 897 (1894). This term does not even appear in Black's Law Dictionary. However, in the context of its use, the term means "equall......
  • Smith v. Frank Gardener Hardware & Supply Co.
    • United States
    • Mississippi Supreme Court
    • 22 Febrero 1904
    ... ... White, 31 Miss. 41; Kearny v. Jeffries, 48 ... Miss. 343; Fulton v. Woodman, 54 Miss. 158; ... Davis v. Hart, 66 Miss. 642; Shackelford v. Brown, ... 72 Miss. 380 ... There ... is a conflict in the proof as to whether appellant assumed ... the payment of appellee's ... ...

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