Stevenson v. Reed

• Decision Date: 18 March 1907
• Citation: 90 Miss. 341,43 So. 433
• Court: Mississippi Supreme Court
• Parties: WILLIAM E. STEVENSON ET AL. v. JOHN A. REED

43 So. 433

90 Miss. 341

WILLIAM E. STEVENSON ET AL. v. JOHN A. REED

Supreme Court of Mississippi

March 18, 1907

March 1907

FROM the chancery court of Sunflower county, HON. PERCY BELL chancellor.

Reed the appellee, was the complainant in the court below Stevenson and others, the appellants, were defendants there. The object of the suit was to confirm a tax title to lands. It was defended on the ground that the land was not sold in forty-acre tracts as required by law (Code 1892, § 3813), and in support of this contention defendants caused the tax collector who made the sale to be introduced as a witness, who, over the objection of complainant to his competency as a witness, testified that he sold an undivided one-half interest in an eighty-acre tract at each offering etc. From a decree in favor of complainant the defendants appealed to the supreme court.

Reversed and bill dismissed.

Johnson & Neill, for appellants.

The principal authority relied on for the suppression of the testimony of Miller, is what we consider an obiter in the case of Clevenger v. Mixon, 74 Miss. 74, s.c., 20 So. 148; the only sentences in the opinion which touch the question we are now discussing follow:--

"The chancellor sustained the exception of the defendants to the answers of this witness to the fourth, fixth and sixth interrogatories. The exceptions do not appear in the record. We suppose, however, they were grounded upon the incompetency of the officer as a witness to testify so as to impeach his own official conduct, but if the testimony had been admitted, it was wholly insufficient to overthrow the prima facie case made by the deed."

It cannot be seriously contended that this is an authority that the officer cannot be heard to testify as to the manner in which he made the sale. So far as we have been able to find there had never been an exhaustive discussion of the point now under consideration by the supreme court of this state. In the case of Wood v. American, etc., Co., 7 How. (Miss.), 632, one of the questions was the competency, as a witness, of a justice of the peace to give testimony to impeach a notarial record made by him. The court through Chief Justice SHARKEY says:

"A justice of the peace probably could not be allowed to falsify his own certificate, for this would be to show his own malconduct, and to deny an accredited act when he is called upon to explain the manner in which his certificate was given, the question is different."

So it seems under this authority an officer is a competent witness to explain the manner in which he discharges his official duty, though the explanation may result in invalidating the official act.

There are two cases, Brothers v. Beck, 75 Miss. 482, S.C., 22 So. 944, and Mullins v. Shaw, 77 Miss. 900, S.C., 27 So. 602, in which one of the questions was the competency of the assessor to testify that he did not return the assessment roll in the time required by law. In these cases tax titles were attacked which rested on the assessment of 1883; in both cases McCauley, the deputy assessor, who made the assessment and returned the roll, was introduced to show that the roll was not returned to the chancery clerk's office by the first Monday in July, according to the statute. We are not advised whether the testimony was objected to in the first case and exception taken, but a motion was made in the second one to suppress the deposition, and the competency of McCauley was one of the points in the case on appeal. The supreme court did not pass upon the competency of this witness in either case, although it commented on the testimony.

We are quite sure that the doctrine that a public officer cannot testify to the truth when the truth invalidates his official acts is not well founded either in reason or authoritative precedent. On this point we call the attention of the court to 1 Wigmore on Evidence, secs. 529, 530, 531.

Chapman & Everett, for appellee.

It is manifest that the land was assessed as the W. 1/2 Of the N E. 1/4 and the E. 1/2 of the S. E. 1/4 of sec. 12, T. 18, R. 3 W., and the taxes on an undivided half interest in this land had been paid by the rightful owner, and there was left an undivided half interest on which the taxes had not been paid. Section 3813 of the Code of 1892 clearly provides the manner in which land sold for taxes must be offered for sale. It provides that the tax collector, in selling lands for taxes, shall offer forty acres, and, if the first parcel sold does not produce the amount due,...