23 Miss. 84 | Miss. | 1851
delivered the opinion of the court.
'This was an action of ejectment in the circuit court of Amite county. On the trial, the plaintiff gave in evidence a patent for the land in dispute, bearing date in 1845, and there rested his case.
The defendant offered to read in proof a sheriff’s tax sale deed for the same land, bearing date in 1829, and offered also to read various certificates of the register of the land-office at Washington, Mississippi, in regard1' to payments for the same land, some of them bearing date as far back as 1815. These were all excluded by the court, at the instance of the plaintiff. A motion was made for a new trial, which was overruled. To this action of the court bills of exception were filed, and the case thence comes to this court.
In the action of ejectment, there is usually nothing but the legal title involved. The only exception admitted in this court, is the case of a purely resulting trust. See Brown v. Weast, 7 How. 181. The papers which were excluded by the court below, were at most evidence only of an equitable title, and were, therefore, properly held to be inadmissible. If the patent of the plaintiff had been absolutely void, as where the government had no title to the land, or where the officer had no authority to issue the grant, the question might be examined, as well at law as in equity. Doe v. Winn, 11 Wheat. 380; Hit-tuk-ho-mi v. Watts, 7 S. & M. 366; Wray v. Doe, 10 Ib. 462; Stoddard v. Chambers, 2 How. S. C. R. 317.
In Dickinson v. Doe, ex dem. Brown, 9 S. & M. 130, this court decided, that a junior patent must prevail in an action of ejectment against an older entry.
The tax collector’s deed could convey no right to land, the title to which, at the time of the sale for taxes, was in the United States. Until sold by the government, it was not liable to taxation, and the sale and' deed are consequently void.
This case does not fall within the rule laid down in Brown v. Weast, 7 Howard, 181. The principle there asserted is, that the trustee of a satisfied term, cannot set up the dry legal title against the beneficiary. It would extend the principle much beyond its just limit, to allow any other than the beneficiary himself, to show such outstanding title in the cestui que trust to defeat the action of the trustee. For all the court can know, the trustee may be seeking to recover for the cestui que trust. At all events, it is a matter between the parties to the trust, with which the defendant has no concern. Hopkins v. Stevens, 2 Rand. 422.
It is insisted that Dixon was not proved to be in possession of the land, but that Faxon was. The relation which Faxon sustains to Dixon does not distinctly appear, but he was probably his tenant. The process was served upon him, but by consent Dixon was admitted to defend, as the person who claimed the title. This point does not seem to have been made in the court below, and we shall not now reverse on that ground. If Faxon really have title, the judgment in ejectment will not preclude him.
Judgment affirmed.
