Bedgood v. McLain

[794] Judgment an. main bill of exceptions reversed; on cross-bill affirmed,. The defendants filed an amendment, to which the plaintiff demurred on the grounds that there were no proper'parties thereto, and that it set out no sufficient legal defence. The overruling of this demurrer is assigned as error in the plaintiff’s cross-bill of exceptions. This amendment alleged: A part of defendants’ title is a deed from Helium, sheriff of Dooly county, conveying the land in controversy, and made by virtue of a wild land tax ft. fa. against said lot of land for its taxes, which was properly levied thereon by said sheriff. By mistake a recital was made in that deed by the sheriff, to the effect that the ft. fa. was a transferred ft. fa., which recital was a mistake, as in fact the ft. fa. was not transferred by the comptroller-general. The-way in which the mistake was made was, that when the sheriff made the first sale of the lots of wild land he wrote his deeds before the sale, leaving the blanks for the name of the purchaser and the number of the lot, and made the recital in all of said deeds that thej?./as.,the authority for the sale, were duly transferred, in writing by Goldsmith, comptroller-general: the fact being that all of said ji. fas. were transferred to J. H. Pate; that when the sale was concluded and deeds made to the purchaser, -quite a number of said deeds with the recital set forth therein, were unused; that when the sheriff came to make the second sale of lots, at which sale the land in controversy was sold, there were a large number of lots sold, and when he came to make deed to the purchasers, in making the deed to J. J. Clements he got hold of one of the deeds prepared for the first sale and failed to notice that he had recited therein that the fi. fa. was transferred. The fi. fa. issued by Goldsmith, comptroller-general, on October 1, 1877, against the land in question for the taxes due thereon for the years 1874, 1875 and 1876, and levied by the sheriff on said lot on March 7, 1878, was the fi.fa. under which the sale of the lot was made, and was the only fi. fa. against that lot that ever came into the sheriff’s hands, and the sheriff never did have any transferred fi. fa. against said land. At the trial the defendants offered in evidence the yi. fa. and the sheriff’s deed. The deed was drawn on a printed blank and contained the words, “ which said execution has been duly transferred by said comptroller to J. IT. Pate of Pulaski county,” the words “J. H. Pate” and “Pulaski” being written with pen and ink, and the other words being in print. The fi.fa. did not show any transfer. The plaintiff objected to the introduction of these papers on account of the-variance mentioned, and also objected to testimony offered by the defendants to explain the variance, because, as he contended, the same could not be explained by parol, and if the deed was made under the transferred fi.fa. it was void. These objections were overruled, which ruling makes another assignment of error in the cross-bill of exceptions. The explanatory testimony was by Kellum, who testified that he was sheriff of Dooly county in 1878; that the levy of th eft. fa. was made by him; that this was the ft. fa. under which the land in question was sold; that he never had any other ft. fa. against said land; that the sale and deed were both under this ft. fa.; that he received it from the comptroller-general and after the sale of the land he returned the ft. fa. to that officer and had never seen it since until the trial; that as sheriff' he had never seen a transferred tax ft. fa. against any lot in the district and county where this land lies, and had never sold a lot in that district under a transferred ft. fa.; that at the June sales in 1878, there was not a single lot in the county sold under a transferred ft. fa.; that the sale of lots under the transferred ft. fas. was in March of that year; that at the March sales he sold several lots under wild land tax ft. fas. which had been transferred to J. H. Pate; that Judge Kibbee furnished him with the blanks to make the deeds, and he filled them out before the sale as far as he could so as to save time, and he thought this was the way the name of J. H. Pate got in the deed, as this was one of the blank deeds left over from those furnished him for the March sales; that he could not tell positively how the mistake occurred in the deed, stating that the ft. fa. had been transferred to J. H. Pate, but he was positive it was a mistake, for he knew the ft. fa. shown him was the one he sold under, and that he never at any time sold a single lot in the 13th district under a transferred ta xfi.fa., nor did he sell a single lot under a transferred tax ft. fa. at the June sales ; and that J. J. Clements may have bought some of the lots under the transferred ft', fas. of J. H. Pate at the March, 1878, sale, but that he could not speak positively as to this. "W. Brunson, of counsel for the defendant, testified that he received the ft. fa. tendered, from the' comptroller-general. One of the defendants testified that there had never been any offer to redeem the land ; and there was no evidence that any such offer had been made by the plaintiff'. The verdict was in favor of the plaintiff; and the defendants’ bill of exceptions makes several assignments of error. The first is, upon the admission in evidence of the deed from Joseph Reese to S. J. McLain, over objection that the interlineation therein of the words, “known as lot 175,” was not sufficiently shown to have been made before or at the time of the execution of the deed. One of the witnesses before whom the deed purported to have been executed was E. H. Platt, notary public. Mrs. Holt testified that her father, E. H. Platt, was the notary public who witnessed the deed, that it was in his handwriting and so were the words interlined, and that she knew his handwriting well, having seen him write often, and having been his assistant in preparing his papers. The ink with which the interlineation was written seemed to be the same as that with which the signatures were made. The defendants introduced evidence tending to show that the plaintiff' had a guardian, one Mize, who was appointed in 1873, and who in 1875 procured an order for sale of certain land in Miller county belonging to the plaintiff'. It is assigned as error that the court ruled out all this testimony «and instructed the jury not to consider it, ruling that in this case it makes no difference "whether or not the plaintiff had a guardian: Further it alleged that the court erroneously held that if the plaintiff was a minor at the time of the tax sale, whether the Ji. fa. under which it was made was transferred or not transferred, such sale did not affect his rights if he was the true owner at that time; and that the land of a minor who was alive could not be sold under the provisions of the law of 1874, providing for the sale of wild land unreturned for the payment of taxes. The court charged that if the State granted the land to Stanley, and Stanley duly conveyed it to Reese, and Reese duly conveyed it to McLain, and McLain died leaving the plaintiff as his sole heir at law, and within seven years after he attained majority the plaintiff" brought this suit, he would be entitled to recover, provided the deeds through which he traces his title from the State are right and valid. This is assigned as error. The defendants further alleged that, though there was no written request for it, the court erred in not charging, as a necessary part of the case, that if the plaintiff had no guardian he must have offered to redeeba the land within one year after his majority; this having been argued and insisted on for the defendants. And they say that the charge as a whole did not cover the issues made in the case, and was wrong on the issues submitted to the jury. G. W. Wooten, G-ustin, Guerry & Hall and J. W. Haygood, for plaintiff'. W. Brunson, Jr., Busbee & Crum and Martin & Smith, for defendants.