Lyon Co. v. Ratliff

92 So. 229 | Miss. | 1922

Ethbidge, J.,

delivered the opinion of the court.

The appellee was complainant below, and filed a bill to cancel the tax title to certain lands, deraigning title from the United States government through mesne conveyances to himself.- The bill sets forth that the defendants had bought said lands at a tax sale made in 1897 for the taxes of 1896, and sets up that the sale was absolutely void because the title to the land at that time was in the United States government, and not subject.to taxation. It is further alleged that the purchaser at said tax sale filed a suit in 1903 against Isabelle Fairley, and" on the 26th day of September, 1904, a decree was entered purporting to confirm the tax sale. The entire record of the said tax sale is made an exhibit to the bill, and the bill in that case averred that on the 1st day of March, 1897, the following-described tract of land (describing same) was advertised and sold by the tax collector of said county and state for the state and county taxes due thereon for the fiscal year 1896, when the said complainant became the highest and best bidder therefor, and upon paying the said bid that the tax collector executed a deed, which deed remained on file in the clerk’s office for a period of two years after the sale, and that no person had redeemed it within the two years; that the complainant is advised,, and so states that the several officers of the county charged by law with the duties of assessing the said lands, and making the levy of the county taxes, for the said fiscal year, and with the duty of advertising and selling the same for taxes, each and all performed their several respective duties in the manner prescribed by law, and that the said tax collector’s deed vested in plaintiff a good and valid fee-simple title; that complainant is informed and believes, and upon such information and belief states, that the defendant Isabelle Fairley claims said land under some claim or chain of title which but for the tax sale to the complainant would vest the fee-simple title thereto in the defendant, and that no other person has any claim thereon, or right, title, or interest therein, and prayed for a decree confirming said tax title. Upon this bill being filed, summonses were issued to Isabelle Fairley, and the decree recites that the defendant Isabelle Fairley had been personally served with process more than five days before the first day of the term, and that no appearance had been entered, and the bill was adjudged and taken as confessed, and on the bill and decree pro confesso final decree was taken confirming said tax title. This bill filed in the present case making said former suit an exhibit thereto was demurred to, and the demurrer overruled. Thereupon an answer was filed setting up the tax sale as above stated, and the decree confirming said sale, and proof was taken showing that final certificate to the lands involved was issued to William Fairley on July 26, 1898, and final patent on February 6, 1899. '

It -appears that Isabelle Fairley, the defendant in the tax sale confirmation suit, was the widow and sole heir of William Fairley. It will be observed from the statement that the bill to confirm the tax title did not deraign title in the complainant further than to set' up the tax deed. The bill did not allege that the title to the land bad passed out of the United States government, and as a matter of fact it had not passed out of the government, and it was beyond the poiver of the state to tax the said land, under the decisions both of this state and of the United States supreme court.

Section 551, Code 1906 (section 308, Hemingway’s Code), provides that, in bills to confirm title to real estate, and to cancel and remove clouds therefrom, the complainant must set forth in plain and concise language the deraignment of his title, and that a mere statement therein that the complainant was the real Owner is insufficient unless a valid reason be given why title cannot be deraigned. In Long v. Stanley, 79 Miss. 298, 30 So. 823, it is said that the complainant must shoAV: First, title in himself from the government down; or, second, title in himself by adverse possession; or, third, title in himself from the defendant; or, fourth, that the parties to the suit claim under a common source, the complainant having a better title from that source. In Gilchrist-Fordney Co. v. Keyes, 113 Miss. 742, 74 So. 619, this court held that, in a suit to confirm, plaintiff must plead and prove a perfect title, and prevail upon the strength of his own claim. In the case before us there was an utter failure to show that the title had passed out of the United States government, and therefore the failure to show a valid tax sale. The decree could not vest a valid title in the complainant against the defendant Isabelle Fairley, from whom the present complainant de-raigns title through mesne conveyances, and the chancellor was correct in holding that the confirmation proceedings were null and void; and the decree will be affirmed.

Affirmed.