Mitchell v. Tubb

65 So. 216 | Miss. | 1914

Smith, C. J.,

delivered the opinion of the court.

Appellee instituted this suit in ejectment in the court below and at the close of the evidence the court instructed the jury to find in his favor, and there was a verdict and judgment accordingly. After issue joined each party' demanded of the other in -writing “a bill of particulars of his claim of title to the premises in question,” which demand was by each complied with. Each claimed and proved on the trial a record title, appellee’s title being traced through a sale to the state by the tax collector in 1892 for the taxes of the preceding year. Appellant, in addition showed possession in himself and in the parties to the deeds through which he claims. What occurred at the close of the testimony can best be stated in the language of the bill of exceptions:

Counsel for plaintiff: “We move to exclude this testimony and for a peremptory charge. ’ ’

Counsel for defendant: “So do we. We won’t let you have any advantage of us in that. ’ ’

Motion of plaintiff sustained, to which the defendant excepted.

Counsel for defendant: “We now ask that we be allowed to reopen the case and show that this land was sold nnder an assessment under the. Madison Act. ’ ’

Motion overruled, to which the defendant excepted.

Counsel for defendant: “We offer in evidence the fact that this land was assessed and sold under the Madison Act.”

The court overruled that motion on the ground that the' bill of párticulars did not warrant such testimony.

Counsel for defendant: “Counsel now then moves the court to permit him to amend his bill of particulars to show that from the records of Monroe county that the land in question was assessed under the Madison Act, and the land was sold because the taxes for the year were not paid.”

Motion overruled, to which the defendant excepted.

The Madison Act, referred to in this bill of exceptions (chapter 9 of the Laws of 1888) entitled “An act to equalize assessments in the different counties in the state,” was repealed in 1892 after the tax sale here in question, and was declared void under the Constitution of 1869 in Hawkins v. Mangum, 78 Miss. 97, 28 So. 872.

The grounds upon which appellant seeks a reversal of the judgment of the court below are: First, that the court should have presumed that the sale in question was based upon an assessment' made under the provisions of the Madison Act, and therefore void; second, if the court could not so presume the case should have been reopened, and he should then have been permitted to introduce testimony showing that the assessment was in fact made under the provisions of the Madison Act; third, that if necessary he should have been permitted to amend his bill of particulars. The argument of counsel for appellant in support of the first of these grounds is that until the contrary is made to appear, civil officers, including tax assessors and collectors, are presumed to obey the laws enacted by the legislature without reference to their constitutionality, leaving that matter to be determined by the courts; and therefore, since the assessment and sale of the land in question was made before the Madison Act was repealed, there being no evidence to the contrary, the court must presume that the assessment was made under the provisions of this act, and that the sale is therefore void.

Ve are relieved from determining whether such a presumption as that here invoked does ordinarily arise, for the reason that it is provided by section 1983 of the Code that:

“A conveyance made by a tax collector to an individual purchaser of land at a sale for taxes, and the list of lands sold to the state at such sale, shall be prima facie evidence that the assessment and sale of the land were legal and valid.”

Notwithstanding the adoption of the Madison Act the then existing general law governing the assessment of land for taxes remained in force, under which a valid assessment could have been made. This being true, the list of land sold to the state and introduced, in support of appellee’s title is -prima facie evidence that the assessment under which the land was sold was made under the then still existing- valid law.

While Coffee v. Coleman, 85 Miss. 14, 37 So. 499, is not directly in point, for the reason that in that case the bill charged specifically that the assessment was valid, the result here reached must be the same as was reached there, for the reason that a prima facie case made by evidence is equally as effective, until overturned, as one made by allegations in a bill to which a demurrer has-been interposed.

Apppellant’s motion to reopen the case and for leave to introduce testimony showing that the assessment was in fact made under the provisions of the Madison Act should have been sustained. The ground upon which ap-pellee seeks to uphold the act of the court below in overruling this motion is that the application to amend the bill of particulars came too late. The defect in this position is that it was not necessary for appellant to have amended his bill of particulars in order to make competent the evidence he sought to introduce. This evidence was intended, not to establish any link in appellant’s-chain of title, but to show the invalidity of one of the deeds through which appellee claims.

Section 1827 of the Code, under which the bill of particulars here in- question was demanded, contemplates only that either party shall inform the other, when requested so to do, of the evidence, documentary or verbal,, by which he expects to establish his own title, or, rather, of' the deeds or other sources of title through which he claims, and not that he shall inform)the other party of evidence which he will introduce in order to show the invalidity of any deed or other source of title through which such other party claims. For instance, if the defendant intends to introduce testimony showing that one of- the deeds under which the plaintiff claims title is a forgery, it is not necessary for him to advise the plaintiff of this fact by including a reference thereto in the ab-«tract of title and bill of particulars furnished the plaintiff in response to a request therefor.

Reversed and remanded.