Trager v. Jenkins

75 Miss. 676 | Miss. | 1898

Whitfield, J.,

delivered the opinion of the court.

Looking to the parol proof offered to -be made at the trial and in the application for continuance, we think it clear that the tax receipt and the parol proof should have been received. It is clear that the offer was to show that the land in the tax deed described by government survey as in section 2 was also embraced in the Spanish claim description in the tax receipt and on the assessment roll, and hence was doubly assessed, and that this same land, the subject of separate ownership, so doubly assessed, was not actually delinquent, but had been paid on. If appellant could show this, the tax sale was void. These lands would appear to have been surveyed as Spanish grants, and were not governed by the United States surveys of section, township and range originally. This would certainly be so, and the survey made at the instance of the plaintiff in this case incompetent evidence, even if the Spanish grant and survey thereunder were made prior to October, 1795. Doe v. King's heirs, 3 How., 125. And the Spanish survey presumably preceded the Spanish grant, and the Spanish grant must have been made prior to act of -1795, while Spain claimed authority to grant. At all events, it is clear from the record that the appellant’s tax receipt, following the assessment roll, showed a Spanish grant description, as well as a government description, and that the parol evidence was offered to show that the same identical land set out in the tax deed as being in section 2, and so assessed, was assessed also by the Spanish grant description, and, hence, doubly assessed, and that it had been paid on for all the taxes due under that description, under which the appellant had originally claimed. The clue was thus furnished by the assessment roll, which parol proof would have applied to the land, and the tax sale would be void. Richter v. Beaumont, 67 Miss., 286, is directly in point. See, also, Dodds v. Marx, 63 Miss., 445, and § 490, code of 1880.

It inevitably follows that the survey made at the instance of the appellee would shed no light on the issue, for all the land called for by the Spanish grant in the tax receipt and on the assessment roll would thus be paid on, no matter where the government survey might have put it, and no matter, of course, how erroneously that survey might locate it.

It may also be added that if appellee knew, when he filed his bill to confirm against alleged unknown owners, that the heirs of Abram Williams were the owners of the land, claiming and occupying it, in the very county in which he lived and the land lay, and gave them no notice, his confirmation proceedings would be void for fraud. And this also appellee asked to be permitted to show, seeking a continuance to do so, which should have been granted under the circumstances of this case.

The judgment is reversed, the verdict set aside amd the cause remanded.