Belcher v. Mhoon

47 Miss. 613 | Miss. | 1873

SlMRALL, J.t

This case contains some exceptional features to the case of Griffin v. Dogan et al. These alone, we propose to consider. The sale was made for non-payment of levee taxes. It is said, first, that the act of 1860 does not apply to a title thus acquired. The first section is, “ that any person claiming to hold, under and by virtue of a tax deed or certificate * * * of sale for taxes, either for state, county, district, or other purpose, may have the remedy.” The levee taxes are embraced under the term “District.” The succeeding phrase, “ or other purposes,” is broad enough, and was clearly used to cover all other tax sales not embraced in the specific enumeration. It is further objected, that the complainant has an adequate remedy at law by ejectment. The bill might well be classified under that head of equity jurisprudence called “quia timet” extended by the statute much further, however, but resting on that principle. The policy of the statute is to adjudicate upon the validity of the title, not to disturb possession. We think that it is a legitimate exercise of legislative power and discretion.

3. It is objected that the bill does not disclose a compliance on the part of the officers assessing and selling the land with the requirements of the law. The sixth section of the act of 1858, page 36, pamphlet, enacts that the deed shall vest in the purchaser a complete fee simple title, and shall be evidence that the title of the owner or owners, as well as of all persons interested therein, is henceforth vested in the purchaser, “ shall be prima facie evidence that the land was subject to the tax, and that all pre-requisites have been complied with.” * *

The allegation of a purchase and acceptance of a deed, under this law, does prima facie in substance aver a vestiture of the title of the owner, and all others interested in the purchaser, and dispenses with the averment that the several pre-requisites, to authorize a sale, have been conformed to.

The statute says that the sale and deed shall have that effect. The plaintiff, then, when he states a sale, and the execution of a deed to the purchaser, makes the averment equivalent to a detailed narrative of a compliance with each special pre-requisite. The statute does not relieve the assessor and sheriff from the duty of following the law ; but places the deed of the sheriff upon the same footing as his deed when he sells land under judgment or decree of a court.

It is competent to legislate as respects testimony, and to pass laws shifting the burden of proof; that is, to pronounce, that if certain facts exist, the presumption shall be that certain other things connected with them were done. As in this case, that the deed shall be prima facie evidence that the steps necessary and intendent to the sale have been taken. The principle in the abstract is affirmed in Cowan v. McCutchen, 43 Miss. 207. Under a statute analagous to this, declaring in effect that the tax collector’s deed shall be prima facie vidence that all things had been done authorizing a sale, it was held that the legislature merely shifted the burden of proof, which it was competent to do, or declared what should be effect of evidence. Therefore, he who impeached the title for failure to comply with the pre-requisites of law, must adduce the evidence and make the proof. Ray v. Murdock, 36 Miss. 696.

Another objection is, that the land was sold by the commissioner before the title was complete in him, and is therefore champertous. A sufficient answer to this is, that the law authorizes and directs him to sell before time for redemption has passed, and convey such title as he has by virtue of the tax deed. But aside from that, the contrary doctrine, under our statutes, was laid down in Cassidy et al. v. Jackson, 45 Miss. 397.

The defendant must, by answer, impeach the tax title, for upon him rests the affirmative to overcome and defeat the prima facie case arising from the sale and sheriff’s deed.

The decree is reversed, the demurrer overruled and cause remanded. Forty days allowed defendants to answer.