Graham v. Warren

Oct 15, 1902
Versions:81 Miss. 330
Calhoon, J.,

delivered the opinion of the court.

It is true that the defendant below could not defeat the ejectment suit on the ground that appellants were incapacited to buy at the tax sale. The reason is that this is an equitable defense, which is not admissible at law. Morgan v. Blewitt, 72 Miss., 903 (17 South., 601), cited in brief for appellants. But the plaintiffs below were not the vendors of Warren, and show no conveyance to them from Hi Eastland & Co., who were his vendors. Even if vendors, they could not get along without putting him in default by tender of conveyance and demand of payment. Under their bill of particulars of title, they rely solely on a tax deed of date November 4, 1887; and, without showing any privity of estate' with the vendors in the bond for title, they sued Warren in ejectment to recover the land more than ten years thereafter. Now, Warren was in possession of the land under bond for title from other persons on February 26, 1881, and was so in possession when sued, and before the tax title was acquired. Plaintiff’s right is barred by the ten-year statute of limitations. Warren having gone in under Eastland & Co., the fact of his possession is presumed to be adverse to an intervening tax purchaser until some recognition of holding subordinately to the tax title is shown, and none appears in this record.

We cannot see that the promissory notes of Warren to his vendors have any relation to this case, even if they would have had if Hi Eastland & Co. had been the plaintiffs below.

There was no deed from Hi Eastland & Co. to plaintiffs offered in evidence, and, without this, it was properly held incompetent to show that plaintiffs, Graham & Co., had tendered Warren a deed, and equally incompetent to show that Thornton, a partner in Hi Eastland & Co., had made a deed to *334plaintiffs. The deed was the- thing to offer; it should speak for itself, and had to be from all the firm, and not from one partner. But the record shows that the plaintiffs, and not the defendant, objected to the question whether plaintiffs had a deed from Thornton.

Affirmed.