Price v. Ferguson

| Miss. | Apr 15, 1889

Cooper, J.,

delivered the opinion of the court.

The court below properly admitted evidence aliunde the deed to apply the description of the land to its subject-matter. The deed conveyed “ ten acres in S. E. ¿ of N. E. -j: of section 33 T. 18 It. 7, same being all of S. E. ¿, except the interest of John Martin (seventeen acres), and interest of Thaddeus Hunter (thirteen acres).’7 The plaintiff proposed to prove that Hunter, Martin, and defendant had been tenants in common of the subdivision, and had made partition thereof among themselves.

If plaintiff had proved what he proposed to prove, the conveyance under which he claimed would have been made certain, and on this branch' of the case he would have been entitled to recover. But the evidence, while competent, was wholly insufficient. The conveyance to Hunter properly described thirteen acres in the southern part of the subdivision; but the one introduced to show what land belonged to Martin described land, not in the subdivision of the locus in quo, but in the one adjoining it to the east. Nor was it shown by the oral evidence what land Martin occupied and claimed. The extent of such evidence was that after the division the parties occupied land in severalty, but how much and in what parts of the subdivision the occupancy of Martin and defendant extended is not suggested.

But, aside from the defect of proof, the plaintiff should not have been permitted to recover, for the reason that pending the trial the defendant, who is an infant, offered to redeem from the plaintiff, and liberty so to do was refused by the court.

An infant whose lands have been sold for taxes is allowed by law to redeem from the sale at any time within one year after attaining majority. Code, § 531.

A tender of the amount due the purchaser at tax sale put it out of his power to recover from the infant upon the title he holds, which is by express provision of law made subservient to the right of the infant owner to redeem. It must be true that even after judgment in ejectment the infant could tender to the plaintiff the amount due (and costs of court), and that this being done the court would refuse the-plaintiff the use of its process to dispossess the infant. Otherwise the purchaser at tax sale would have it in his power to harass the infant without benefit to himself, and against the spirit of the law permitting redemption. It would be a vain thing to render a judgment against the infant tendering redemption, which, when rendered, would be at once subject to be defeated by the redemption.

The judgment is reversed and cause remanded.