79 So. 69 | Miss. | 1918
delivered the opinion of the court.
The appellant filed a bill in the chancery court of Harrison county, alleging that he is the owner in fee simple of a tract of land situated in Harrison county, Miss., being known, designated, and described as lot 49 of the G-ottschalk survey of the Claude Ladner claim or grant, in township 8 south, range 11 west, and by virtue of his ownership in fee simple his right of possession to this tract of land accrued on the 11th day of
The complainant deraigned his title to the lands from the United States to Claude Ladner by a warrant, confirmed by act of Congress May 28, 1830; from Claude Ladner to Elihu Carver, warranty deed, dated May 3, 1830; Claude Ladner, Marie Ladner, Elihu Carver, and
The answer of the several defendants denied the principal allegations of the bill. On the hearing the complainant introduced the above chain of title, together with recordation of the same, together with field notes setting out the government survey of the Claude Ladner claim, and field notes showing Bartholomew Pellerin claim as made by the United. States government, with a survey of the Widow Ladner claim, adjoining the Claude Ladner claim, and depositions of numerous parties amoung them the deposition of E. S. Drake, who made the survey made exhibit to the bill in this case. He testified that he is a civil engineer and abstract man of experience of fifteen years or more, and that his specialty was in finding lost or obliterated lines and corners of government surveys, and also had considerable experience in railroad engineering, drainage work, and other branches of civil engineering; he is trained through a correspondence course and the continual study of approved text-books; that he was familiar with the field notes of the Claude Ladner claim as shown in field notes of the government survey of Harrison county, Miss., and that, according to recitals of numerous instruments of record in Harrison county, Miss., there was a subdivision of the Claude Ladner
At the conclusion of the complainant’s evidence the defendants moved the court to strike out the evidence and grant a judgment dismissing the claim of the complainant and his bill, which motion the court sustained.
The record is voluminous and complicated, and it is impossible, in the course of an opnion, to set out in full the contentions and evidence of the parties. It seems, however, that the attack. upon complainant’s case resolved itself principally into two contentions: First, that the tax deed made by Hester, tax collector, to Champlin, is void; and, second, that there is no record in the county records of the G-ottschalk survey of the Ladner claim. It is contended that the tax sale is void: First, because the assessment and sale was made by description referring to this unrecorded survey, or based upon this unrecorded survey; and, second, because the taxes for four years were included in this sale, the deed showing that the taxes for 1846, 1845, 1844, and 1843 were mentioned in the deed. Prior to the act of March 5, 1846 (Hutchinson’s Code, p. 184), there does not seem to have been a specific provision as to when lands should be sold for default in payment of the taxes. Act Feb. 6, 1841, section 37 (page 177, Hutchinson’s Code), provides that, if any taxes on land shall remain unpaid on the 1st day of Febuarv in the year in which the
We see no reason to hold that the land could not be assessed for taxes on the description contained in this record. The assessment and sale here refers to the government subdivision which contained the land. This court has recently, through division A, decided, in the case of Albritton v. Fairley, 116 Miss. 705, 77 So. 657, that parol evidence was admissible to supply a description under this section, where a part of the lot was excepted from the assessment and conveyance. It seems to be a general rule that parol evidence can be introduced to supply defects in description where references are made to other records or deeds for that purpose. However, we think the description shown in this record is a proper description. It will be further noted that, as to the title of the defendants, as shown on the map introduced in evidence, as well as the proof of complainant in deducing the chain of title, the defendants claim through the Gottschalk survey, in the Beach Grove subdivision to the city of Gulfport. The title of the map is “Map of Beach Grove Subdivision of Part of the Gottschalk survey of the Claude Ladner Grant, in the City of Gulfport, Township 8 South, Range 11 West.” In the Camp’s addition to the city of Gulfport map the certificate is:. J
“That I have surveyed for H. A. Camp all of that part of lots 45, 46, 47, and 48 of the Gottschalk survey of the Claude Ladner grant that lies south of the Louisville & Nashville Railroad,” etc.
We desire, before closing the opinion, to call attention to what seems to be a growing practice in some of the chancery courts to sustain a motion to strike out the evidence of the complainant. We think this is contrary to the history and practice of the chancery courts, because it is set down upon bill, answer, and proof, and the defendant, if he is willing to risk his case upon the complainant’s proof, or rather the failure of the complainant to prove his case, should submit the case to the chancellor for final hearing, and, if he is not so satisfied, he should present what he desires or may be able to present. The result is that, if the present practice is followed, this court cannot render a judgment finally here as required by the Code, unless we treat, the defendant’s motion as being equivalent to setting down a cause for final decision. We hesitate to apply that rule in this case, for the reason that there is claim of adverse possession presented, and perhaps the defendants did not intend to risk their case upon the strength of the complainant’s proof. We serve warning, however, that if defendants elect to make this motion and secure a decision of the chancellor favorable to them, they they may be held to the result, and this court may, in its discretion, enter judgment hereupon the record. We never heard of a motion to strike out depositions on a hearing of a cause on the merits, but objections to depositions, other than to their sufficiency to establish the case, have always been taken by a motion to suppress made in advan'ce of the trial. We see no reason why the rule should be changed merely because the statute permits oral evi
The judgment is reyersed, and the cause remanded for further proceedings.
Reversed and remanded.