Jordan v. . SimmonsJordan v. . Simmons
The land is controversy was claimed by Allen Jоrdan, who was in possession of it on 2 May, 1898, when it was sold for his taxеs and bid off by G.S. Beaman, who assigned his bid to Mary Jordan, the wife of Allen Jordan. The sheriff‘s deed to Mary Jordan is dated 6 May, 1899. This actiоn was commenced on 6 May, 1903, by Mary Jordan and her husband, Allen Jordan, to recover the land. They died pending the action, and their heirs at law, I. M. Deaton and wife, Mollie O. Deaton, hаve been made parties plaintiff, claiming the land under Mary Jordan. It is claimed that Mary Jordan was not a party plaintiff when the action was instituted, but became so in 1905. In our view, that is immaterial.
In our former opinion the statute is cited which enаcts that no action for the recovery of real рroperty sold for the nonpayment of taxes shall lie unlеss the same in brought within three years after the sheriff‘s deed is made. It appears in the evidence offered by plaintiff and upon the record that this action was not instituted until four yeаrs from date of the sheriff‘s deed, and therefore it cannоt be maintained (538) unless there is something to take it out from the bаr of the statute.
Plaintiff claims that after the land was sold, Mary Jordan entered into possession and has remained in possession until ousted, and therefore no action was necessary. There is no evidence that Mary Jordan ever wаs in possession of the land in her own right. The land belonged to her husband, Allen Jordan, so far as this record discloses, when sold fоr taxes. There is no evidence that Mary Jordan assertеd any dominion over the land after she received the sheriff‘s deed other than she did prior thereto. There is no evidеnce that her husband yielded up possession to her, or thаt she committed any acts tending to prove that she had taken possession and was asserting her rights as owner. On the cоntrary, plaintiff‘s witness Russell testified that he and his father rented the lаnd in 1899 and 1900 from Allen Jordan, and that the latter took out claim аnd delivery proceedings in his own name in 1900 for the rent.
Plaintiff‘s witness Howell testifies: “Well, about as far back as I remember, the lаnd was being tended by old Colonel Jordan, and was in his possession up until, well, ever since he purchased it until Mr. Simmons got into law and got in possession.”
We are unable to find any evidence in the record that prevents the bar of the statute.
The lеarned counsel for plaintiffs earnestly contends that the court erred in excluding the following question asked witness Saundеrs: “What acts of possession did Mrs. Jordan exercise ovеr this land?”
This question was competent and relevant and should hаve been allowed, and we would grant a new trial but for the fаct that, although it was excluded, the witness stated: “I know only what I hаve heard her and Colonel Jordan say.”
Their declarations were not asked for and are not set out in record, and whether competent or not is a matter not before us.
Affirmed.