78 Miss. 585 | Miss. | 1900
delivered the opinion of the court.
Mr. Barber sought in chancery to enjoin execution of a judgment in ejectment recovered by Mr. Sintes against him, on the ground that he had, when the action of ejectment was brought and tried, an equitable defense, and, equitable defenses being inadmissible in such cases, he claimed the right, after
We do not now decide whether or not resort may be had to chancer}' after judgment in ejectment in any case merely because of an equitable defense, in view of code §§ 1677 and 1678, making judgments in such actions conclusive, and providing that they may be recorded as deeds may be.
His specific grounds of equity, as charged in his bill, are that Sintes bought the land July 1, 1895, at a tax sale made by the proper officer of the city of Biloxi, and that day got a deed for it, which deed he says was void, because of a patent ambiguity, and that he did not file the deed for record for more than two years after the date of his tax deed. Mr. Barber avers that that deed was £ £ inoperative and void until it was filed for record,” and that, in the meantime, between July 1, 1895 and July 5, 1897, when Sintes filed his deed for record, the original owner, one A. Montross, conveyed the land to one P. J. Montross, who, on the same day, conveyed it to one Schuyler, who, on that same day, conveyed it to Mr. Barber, who was without any notice of the tax sale. Of course any contention that an equity arose, to enjoin a judgment in ejectment, out of the fact that the tax deed to Sintes was void for patent ambiguity is absurd, as all Mr. Barber had to do was to object to its introduction in evidence for that reason. But really this point does not seem to be insisted on in argument.
The actual contention is that code § 3022, which provides that city tax deeds shall be £ £ filed with the municipal clerk, and there remain subject to redemption for the same length of time and in the same manner as prescribed for the redemption of lands sold for state and county taxes, ’ ’ does not specifically provide that a failure to file shall avoid the deed; and it is said that section refers to code §-3818, which requires the county tax collector to file £ ‘ a list of lands sold to individuals with the clerk of the chancery court, ” but further provides that £ 1 a failure to make return or record the list shall not affect title. ’ ’ Sec
The requirement of filing the deeds to purchasers at tax sales in the one case, with the municipal clerk, and, in the other, with the chancery clerk, to remain two years, subject to redemption within that time, we regard as vital in considering the question before us, and we have no difficulty in holding that the presentation of a deed not so filed in an action of ejectment could be objected to, and that the objection should be promptly sustained because of the mandatory requirement of §§ 3022 and 3823, and also because of § 2458 giving effect to conveyances of land, as to subsequent purchasers for value without notice, only from the time of delivery to the clerk for record.
The decree overruling the demurrer to the hill is reversed, the same is sustained and the hill dismissed.