Davis v. Cass

72 Miss. 985 | Miss. | 1895

Cooper, C. J.,

delivered the opinion of the court.

Mrs. Cass was not the owner of an}’ interest in the lot in controversy at the time of her death. Her interest therein had been sold to the state, in March, 1881, for the taxes due thereon for the year 1880. The period for redemption expired in March, 1882. Mrs. Cass died in July, 1882, and, so far as the record discloses, had, at that time, no interest in the lot. The period allowed for redemption having expired, the state’s title was absolute, and nothing remained in Mrs. Cass of her former estate in the land. When Mr. Cass bought from the state, he became owner of the land, and having, in turn, neglected to pay the taxes due to the city of Jackson, it was lawfully sold therefor, and the time allowed for redemption from that sale has also elapsed; but, in addition to this, it appears that a bill, to Confirm this tax title was exhibited by the purchaser against Cass and all persons claiming any interest in the land, and a decree made thereon. This decree has been collaterally attacked in the present proceeding, and has been held for naught, for the reason that the copy of the published notice sent to the defendant by the clerk, and directed to the address of the defendant as given in complainant’s bill, was not delivered by the -postal authorities, but was returned to the clerk. This decree was not void, nor even erroneous, for a complainant is not required to know, with' absolute certainty, the address of a nonresident defendant; and if, by reason of mistake, the complainant gives the wrong address, or the defendant changes his residence, or the notice, properly addressed, by reason of some casualty, fails to reach him, the decree subsequently made is not thereby rendered void. The court has jurisdiction of the subject-matter of the suit, the land. A general notice by publication is given by newspaper advertisement to ‘' all parties claiming or having any interest therein, ’ ’ and a copy of this notice is required to be mailed to the known address of any defendant; but it was never contemplated that the validity of the proceedings and decree should depend upon the fact that the addressed notice should actually come to the hands of the defendant. When the decree is made upon publication only, the defendant may, within two years thereafter, procure a rehearing. Code 1880, §§ 1859, 1860. The defendant, Drey-fus, having, by his purchase at tax sale, acquired a good title to the land, so far as appears, by this record, and having procured a decree confirming the same, stands doubly protected against the right asserted by the complainant to redeem.

The acquisition of this title by Davis, or by his wife if she had seen proper to buy the land, is not at all affected by the fact of the formerly existing tenancy in common between Mrs. Cass and Mrs. Lynch. That was long ago dissolved, and the purchasers from the state, Mrs. Davis and Mr. Cass, have never dealt with the land as tenants in common. Claiming in sever-alty, Mrs. Davis occupied and improved a particular portion of the land, and Cass recognized her right by causing the remainder of the lot to be assessed to himself, and paying taxes on it, as thus assessed, for years. Mrs. Davis owed him no duty in reference to this land. She claimed no interest in it, and Cass recognized no right in her. Under these circumstances, he cannot now impose upon her the relation of a co-tenant, in order to seek protection thereunder as against the tax title resulting from his own default.

The decree, is reversed and bill dismissed.