Clymer v. Cameron

| Miss. | Apr 15, 1878

Campbell, J.',

delivered the opinion of the court.

The defendants in error claimed the land sued for by purchase from the state, under section 49 of “An act in relation to public revenue, and for other purposes,” approved April 15, 1876 (Laws 1876, p. 129), which gave the remedy of unlawful detainer to any purchaser from the state to recover said land, and which was not to be barred before January 1, 1878 ; and it was not error to refuse to dismiss the case.

The deed of the auditor conveying the land to defendants in error was properly admitted as evidence.

The book from the chancery clerk’s office, containing the list of lands sold to the state for taxes, was properly admitted as evidence. The objection to it that the original, instead of a copy of it, was offered is without any merit. It is only as a substitute for the original that a copy is ever admitted. The original is always the best evidence, and it is only because of the impossibility or inconvenience of producing the original that a copy is admitted in its stead in any case. It is on this principle that sworn copies and certified copies are admissible. It is because the original is admissible as evidence that a copy may be received, and it is always allowable to introduce an original record where it can be produced. We announced this view in Parkman v. Kline (MS), but considered it so elementary and manifest that we ordered the opinion not to be reported. 1 Greenl. on Ev., sec. 484; ib., 501.

There was no error in the exclusion of evidence oifered by plaintiff in error. The plaintiffs below, by reading the list of land sold to the state in Madison County, by the tax-collector, on the second Monday of May, 1875, and the deed of the auditor to them, showed a right to recover the land, unless the defendant should show that they had not acquired the title which the list of land sold to the state imported prima facie. The auditor’s deed vested in them the state’s title. The auditor’s deed is not prima-facie evidence of title, because it is not made so by statute ; but the list of land sold to the state is prima-facie evidence that the sale to the state was valid. Code, sec. 1700, and sec. 10 of the act approved March 1, 1875 (Laws 1875, p. 15). This presumption embraces the time, place, and circumstances .of the sale, and includes the liability of the land to be then and there sold as delinquent for non-payment of taxes, according to law. It is but a presumption, and liable to be rebutted ; but until it is overthrown by evidence it must stand and effect its legitimate result. There is no evidence in the record impeaching the validity of the sale of May 10, 1875, to the state, of the land in controversy. It is said by counsel that the land was not liable to sale on May 10, 1875, because it was not delinquent for taxes for any year prior to 1874. If so, the sale on May 10, 1875, was void, and vested no title in the state, as we held in Gamble et al. v. Witty et al., ante, 26; but there is nothing in the record to suggest that the land was not held by the state, and was not delinquent for taxes prior to 1874. That should have been made to appear, and it would have defeated the claim of title asserted by virtue of the list of lands sold ,to the state on May 10, 1875. In the absence of any evidence to rebut the presumption of title in the state, as above, it was proper to •exclude all of the evidence offered by defendant below, as it •did not go to defeat this title. None of it was relevant. Bell v. Coats, 54 Miss.; Virden v. Bowers, ante, p. 1.

For the reasons already stated, the action of the Circuit 'Court upon the instructions was correct. The plaintiff in the .action having shown a prima-facie right to recover, which the •defendant had wholly failed to overturn, no instruction could harm or benefit him.

Upon the facts in the record the plaintiffs below were clearly •entitled to recover, and the motion of plaintiff in error for a new trial was properly overruled.

Judgment affirmed.