McLemore v. Scales

68 Miss. 47 | Miss. | 1890

Campbell, J.,

delivered the opinion of the court.

The sale for taxes on March 3d, 1884, and the subsequent recovery in an action of unlawful detainer, in pursuance of § 538 of the code, made the title acquired by the sale and conveyance for taxes unassailable after one year from the judgment in the unlawful de-tainer. Even if the taxes for 1883 were paid, and therefore the land was improperly sold, the fact of a sale and conveyance, and action for possession, and success in the action, according to the section of the code cited, perfected the title, after one year, so as to preclude controversy as to the validity of the sale. The statute proceeds on the assumption that, in defense of the action brought against the owner or his tenant, every admissible ground of resistance of the plaintiff’s demand will be relied on, and as such proceeding will fully inform the owner of the sale of his land for taxes, he is required to bring his action to controvert the said title within one year after judgment against him in the possessory action or forever after remain silent as to any complaint of that title. It is a statute of limitations applicable alike to all sales of land for taxes, and precluding controversy, whatever may be the ground for assailing the title claimed by virtue of the sale. It is one of several provisions of law designed to secure the rights of purchasers at sales for taxes, and thereby accomplish the double purpose to constrain owners of land to pay the taxes, and induce individuals to buy all land sold for taxes, so that the state shall not become the buyer. It should have effect according to its purpose.'

This view makes it unnecessary and improper to consider any other of the many questions presented, and shows that the judgment of the circuit court should have been for the defendant there, who is cross-appellant here.

Judgment reversed, and cause remanded, the appellee and cross-appellant, Scales, to recover of the appellants the costs of this appeal.

J. B. Gwin and Nugent & Me Willie, for appellant, McLeraore, filed a lengthy suggestion of error, earnestly urging that the judgment in the action of unlawful detairer was a nullity, and cannot have the effect given to it by the court in its opinion.

The court for the trial of actions of unlawful detainer is one of statutory origin, of special and limited jurisdiction, and everything essential to the due organization of the court must affirmatively appear. Warren v. Church, 50 Miss. 223; Holt v. Mills, 4 S. & M. 10; Root v. McFerrin, 37 Miss. 1.

In this case the warrant was returnable on a day specified, as required by the statute. Code 1880, §§ 2651, 2652. It does not appear that any other justice was summoned. The justice who issued the warrant had no authority to take any step in the cause. If the other justices had appeared they could have organized, and then continued. The failure to do so worked a discontinuance, and the case was at an end. It is true, a defendant who appears cannot object afterwards to mere informalities not objected to at the time, but the decisions recognize the absolute dependence of the vitality of the proceedings on the due organization of the special court. Brown v. Ashton, 56 Miss. 677.

See also Mason v. Gwin, 8 Gratt. 58 ; Towner v. Phelps, 1 Root, 250.

This point of objection was properly reserved on the trial, and presented in the brief of the appellants, but not at any length.

Response to suggestion of error, Campbell, J., writing it:—

Although the point urged by an elaborate argument on suggestion of error was barely suggested by counsel in the submission of the case for decision, and was not urged in argument, it did not fail to receive the earnest attention of the court, which, on full consideration, and after much discussion, arrived at the conclusion that it presented no difficulty. The facts are, that complaint was made as provided for by § 2646 of the code, and a warrant was issued, in pursuance of § 2647, and was served on the defendant, and returned, and on the return day the defendant came, but there was present only the justice who issued the warrant, and as he could not by himself organize the court to try the case, it was postponed for a week, with the concurrence of the justice and the defendant, and at the time and place appointed the justice and another justice of the peace of the county constituted a court for the trial of the case, and the defendant appeared before this court, and judgment was given against him. Any two justices of the county might lawfully compose the court, code § 2651, and as the court had jurisdiction of the subject-matter, it was in the power of the defendant’ to waive a warrant or its service, and appear before the court, or consent to or acquiesce. in any matter not involving the jurisdiction of the court as to the subject. It is not shown how the change of the return day of the warrant came to be made, nor is it important, since it is shown that the defendant consented, by his conduct, to the change of time for the trial of the case. If he had not appeared before the court when properly constituted with power to try the case, a very different question would have been presented, but his appearance cured any irregularity as to time.

We entertain no doubt of the soundness of this view, and failed to speak of it in the opinion delivered upon the decision of the case, because we concluded that the learned counsel, who filed a brief for the appellant, had no confidence in the suggestion, which he did not argue to support, and as our consideration led us to agree in his light estimate of it, no attention was given to it in the opinion.

We adhere to the decision heretofore made.