70 Tenn. 200 | Tenn. | 1879
delivered the opinion of the court.
This was an ejectment bill, filed on the 7th of May, 1867, by the executory trustees, heirs and devi-sees of John McKinley, deceased, and R. M. Patton, to recover from defendants land claimed by the latter under a tax sale made in 1864, under the act of Congress for the collection of direct taxes in insurrec-tionary districts.
The land, it seems, was assessed in the name of the complainant R. M. Patton, but was owned by him and the McKinley heirs, he owning one individual moiety and they the other moiety. The bill was based upon the ground that the tax sale was void for several reasons assigned. The Chancellor so thought, and granted the relief sought by decree rendered in March, 1872, and his decree was affirmed by this court on appeal in October, 1875. A writ of error was sued out, by which the cause was taken to the Supreme Court of the United States. That court reversed the decision of this court, and has remanded the cause, “ with instructions to enter a decree dismissing the bill.” Such a decree -is now presented on the part of the defendants, while the complainants move the court to send the case back to the chancery court, with leave to them to amend their bill, or to apply to the court below to amend.
The ground upon which the application of .the complainants is put, is that the commissioners for the collection of the direct tax at Memphis adopted the
The application rests upon the idea, rather implied than positively stated, that B.. M. Patton was at the time a person in the Confederate States, and would come within the decision of the Supreme Court of the United States.
This application, it may be premised, is made by counsel in writing signed by them, not under oath, nor sustained, as to the facts upon which it rests, by affidavit of the parties, or otherwise. It concedes on its face, that the facts were known at the filing of the bill, as well as when the decision of the Supreme Court of the United States was made in 1873, but were not used in the bill because their importance was underrated in view of other defects in the two proceedings then deemed fatal, and so held to be by the State courts; nor immediately after the decision in Lacey v. Irwin, because the case was then in this court upon a decree in favor of the complainants, which they felt confident would be sustained.
If it be conceded that the mandate of the Supreme Court of the United States leaves us the required liberty of action, that the application is properly made, and sustained by sufficient evidence of the facts on
For another reason the application cannot be entertained, and would do the complainant no good if it were. The application rests upon the residence of Patton. The other cotenants may have been free to redeem the property, or pay the taxes. Their residence at the time does not appear. But the testator, John McKinley, lived in or near Louisville, Ky., and the heirs, devisees and executory trustees are described in the bill as citizens of Kew York or Kentucky. If they were not in the Confederate States, no impediment existed to the payment of the taxes by them, and the tax commissioners would, doubtless, have required the entire taxes to be paid.
The application of the ' complainant must be refused and a decree entered in accordance with the mandate' of the Supreme Court of the United States.