Smith v. W. Denny & Co.

43 So. 479 | Miss. | 1907

Mayes, I.,

delivered the opinion of the court.

The bill of complaint filed in this.cause is demurred to because, as stated in the demurrer, “complainant merely states a conclusion of law when he avers that the tax sale, under which he claims title to the land in controversy, was legal and valid, instead of alleging the instances of and specifically setting forth all the facts necessary to constitute a valid sale of the land by the tax collector”; and, secondly, because “complainant has not in his bill stated such a cause as entitles him to the relief sought.” If the bill of complaint be treated as a proceeding under § 498 of the Code of 1892, instituted for the purpose of confirming a tax title, it is imperfect, in that the owner of the land at the date of the sale is not made a party. If the owner at the time the sale was made is dead, that fact should be stated in the bill, and liis heirs, if known, made parties, and, . if unknown, the fact should be alleged. It is of the very essence of a proceeding to confirm a tax title that the owner of the land at the date of sale, or his heirs, as the case may be, should be made parties, as well as other persons interested in the land, so far as known to the complainant, or as he can ascertain by diligent inquiry. It is true that complainant alleges in his bill “that the defendants named are the only ones, so far as complainant can ascertain after diligent inquiry”; but the allegation of the bill is contradicted by the tax deed filed as an exhibit, which on the face of it recites that the land was assessed as the property of W. F. Allen, who is not made a party to the bill. The very purpose of sec. 498 being to confirm a tax title, who could be imagined to be a more necessary party, or have greater interest in the proceeding, than the party who is about to lose his land by virtue of the very act that complainant seeks to vest the title in himself ? All interested parties, so far as known or can be ascertained by diligent inquiry, must be made parties by the complainant, and over and above every one else it is necessary to make the former owner a party.

If the complainant had made the necessary parties defendant to his bill, it was not necessary for him to set forth all the facts constituting the right of the tax collector to make the sale, as contended by • appellees. Section 1806 of the Code of 1892 makes the tax collector’s deed, together with the list of lands sold to the state at such sale, prima facie evidence that the assessment and sale of the land was legal and valid. Therefore, when complainant charged in this bill that the land was sold and that the list of lands sold to the state at the time this sale was made, shows that these lands were sold, and makes the tax collector’s deed an exhibit to the bill, he has stated a perfect cause of action. If there is anything affecting the validity of this tax sale, it is defensive, and should be set up by the defense; but it is not required that the complainant should do more than state his cause of action in the manner in which he has stated it. The authorities cited by counsel for appellee are not applicable to a proceeding under § 498, Code 1892. Griffin v. Dogan, 48 Miss., 11; Belcher v. Mhoon, 47 Miss., 613; Coffee v. Coleman, 85 Miss., 14, 37 South., 499.

The decree of the chancellor, dismissing the bill, under the circumstances as shown by the decree, was proper. The bill of complaint showing on its face that no valid decree could be made, because of the failure of complainant to make defendant to his bill parties that were necessary, it was the duty of the chancellor to order complainant to amend his bill by joining these parties as defendant, and, on failure to do so,'dismiss the bill of complaint; and this he did. Lemmon v. Dunn, 61 Miss., 210; Burroughs v. Jones, 78 Miss., 235-243, 28 South., 944. The decree of the chancellor specifically points out to complainant the defects in his bill, and recites that leave was granted to complainant to amend his bill, which he declined to do, whereupon he dismisses the bill, and complainant appeals.

If leave to amend had not been allowed the complainant, we would remand the case; but, since leave to amend was granted and refused, the decree must be affirmed. Burroughs v. Jones, 78 Miss., 243, 28 South, 944.