Smith v. Jassen

• Decision Date: 26 May 1913
• Docket Number: 16,032
• Citation: 105 Miss. 227,62 So. 172
• Court: Mississippi Supreme Court
• Parties: W. H. SMITH ET AL. v. JOSEPH JASSEN ET AL

62 So. 172

105 Miss. 227

W. H. SMITH ET AL. v. JOSEPH JASSEN ET AL

No. 16,032

Supreme Court of Mississippi

May 26, 1913

APPEAL from the chancery court of Calhoun county, HON. D. M KIMBROUGH, Chancellor.

Suit by Joseph Jassen against John H. Shay and all others claiming interest in land. After decree for complainants W. H. Smith and others had the case opened. And from a decree sustaining a demurrer to cross complainant's bill they appeal.

This suit was begun by a bill in chancery filed by the appellees against John H. Shay and all others claiming an interest in the land described in the bill, and publication was duly made for unknown claimants. The bill was filed in September, 1909 and alleged that complainants were the owners of said land having purchased same through mesne conveyances from the state; said land having been sold to the state in March 1885, for the taxes of 1884, and by the state having been patented in 1887 to said Shay, from whom these appellees purchased. Shay failed to answer, and in November, 1909, a decree pro confesso and final decree was taken as against him, and quieting and confirming appellees' title to said land.

In July, 1911 (within two years), these appellants, claiming an interest in said lands, obtained leave to have the case reopened, and filed an answer, denying the allegations of appellees' bill, and made their answer a cross-bill, wherein it was set out that they were the heirs at law of M. N. Smith, deceased, who formerly owned the land and from whom they inherited. The prayer of the cross-bill was for the vacation of the decree in favor of appellees and the cancellation of clouds upon the title of the cross-complainants, and confirmation of their title to said property. The cross-bill alleges that the state had no title to the land at the time it sold same to appellees' vendors, since the alleged sale of said land for taxes was void, first because the taxes had been paid or tendered for the year of the alleged delinquency, and next because certain requirements of law with reference to tax sales had not been complied with, which were set out fully in the cross-bill.

When the case was reopened, appellees (complainants below) entered a motion to dismiss their bill as against appellants, which motion the court sustained, but permitted the cross-bill to remain on file as an original bill. To this cross-bill appellees then filed a demurrer, which was sustained by the court. Among the grounds of demurrer relied upon are gross laches; failure of the cross-bill to allege possession of the premises, or that there is no adverse occupancy; failure to show title in the cross-complainants; and failure to sufficiently show payment of taxes for the year alleged to be delinquent, to wit, 1884.

Reversed and remanded.

Haman &amp Bates, for appellant...