Bell v. Gordon

55 Miss. 45 | Miss. | 1877

Campbell, J.,

delivered the opinion of the court. '

This being a bill to confirm a tax title acquired May 7, 1860, and there being no evidence of fraud or mistake in the assessment or sale of the land, complainant was entitled to a decree, unless the deed he offered to support his claim be void on its face. Sess. Acts 1860, p. 213.

The deed is in the precise form prescribed by article 38, page 80, Code of 1857, except that its words are, “I,-A. J. Donalson, sheriff and tax-collector of Pontotoc County,” etc., instead of “I, A. J. Donalson, tax-collector of Pontotoc County,” etc.; and superadded to the signature of Donalson to the deed is the word “ sheriff,” or an abbreviation of it, which variation, it is gravely argued, renders the deed void.

The maxim, utile per inutile non vitiatur, disposes of these objections. It is further insisted that the deed is void because it does not state the name of the reputed owner of the land. The answer to this is that the deed follows the form prescribed bylaw. Bowers v. Chambers et al., 53 Miss. 259. The deed raises the presumption that all was done that was necessary to a valid sale by the tax-collector, and, there being no evidence to rebut this presumption, the objection to the deed because it does not show that the sale was made by offering first the smallest legal subdivision, and because complainant did not show the concurrence of those things necessary to a valid sale, is unavailing. The production of the deed, without other evidence, entitled complainant to a decree. The other evidence which he offered was wholly unnecessary, and no harm was; done by excluding it.

The point so zealously pressed by counsel for appellees, that we cannot notice the evidence read in the court below because it is not contained in a bill of exceptions, has no merit. It has no application to a chancery cause. The evidence in such case is always a part of the record for review on appeal, without a bill of exceptions.

The complainant did not, as he might, make defendants to his bill “ all persons having or claiming any legal or equitable interest in ” the land, but proceeded by summons against certain persons named. This controversy is, therefore, only with those made defendants, and as against them complainant is clearly entitled to a decree. The decree dismissing the bill is reversed and decree ordered for appellant.