Barnett v. Wedgeworth

Opinion. Chalmers, J., delivered the opinion of the court: Complainants (a]Dpellees) had restitution of their land, upon satisfactory proof made that it was bought for taxes by the defendant at a time when he was disabled to buy a tax title thereto, he being, at the time, in possession as the tenant of their father, now dead, whose property it then was. They did not pay, nor offer to pay, in money the amount of taxes paid out and damages thereon; but asked that an account be taken and that the amount found due defendant for these things should be set off against the large sum due themselves by him for mesne profits. The account was taken by a master and he was found largely indebted to them for rents and profits of the land while in his possession, which account was confirmed by the chancellor. The one was adjudged and decreed [341] to be an offset against the other. It is insisted, upon appeal, that sums due for mesne profits cannot be invoked as an offset against sums expended in paying taxes, but that these latter must always be paid in money, even though the defendant may owe a much larger sum for rents. No authority is found for this position, but even if true, it would not affect this case. If defendant was a tenant in possession of the land, he was disabled to buy, and his purchase inured to them. His pretended purchase was in law theirs, so they have always been the lawful owner. Surely an owner can always reclaim his own by accounting at the final decree for anything that is a lawful charge upon it, and cannot be deprived of the right of offset, even in redemption proceedings when, as here, the debt due him is the direct product of the land in controversy. This, however, is not solely an application to redeem, but a reclamation of their own by complainants, upon which equity will fasten a lien for all proper charges. The’ bill could be maintained regardless of the statutes in reference to a repayment of all taxes expended in the acquisition of the land. These taxes defendant actually got so far as proved, and it was not incumbent upon complainants to pay them or offer to refund them in their original hill. We cannot notice errors assigned with reference to alleged mistakes in stating the accounts, since no exceptions were filed to the report of the commissioners in the lower court. On Suggestion oe Error. Opinion. Chalmers, J., delivered the opinión of the court: This ease stands on suggestion of error. In our former opinion we held that no notice could be taken here of alleged errors in the commissioners’ report because no exceptions had been filed thereto in the court below. We failed to note that the errors in computation were shown by the face of the pleadings, and that, therefore, no exceptions were necessary in the court below. The errors are to be corrected here. Brooks v. Robinson, 54 Miss. 279. Appellant should have been credited by $150 more than he was. He is not entitled to any credit for any taxes paid by him during the time he held the land. The bare fact that such taxes were assessed is not enough, unless he has shown that in fact he paid [342] them, which he has not done, though duly cited to appear before the commissioners. The decree will be corrected by increasing- the amount of his credit by the sum of $150, and, as thus amended, will stand affirmed. Let the cost be divided.