McGee v. Holmes

Cooper, C. J., delivered the opinion of the court. The land sued for in this action was owned by Francis M. McGee, the father of the appellant, who died in 1863, leaving a widow, Mary A. McGee, and three children, two of whom have since died unmarried. Mrs. McGee died in 1879. Before her death, Mrs. McGee, claiming the land only as widow of her deceased husband, sold the same to one Loyd, who went into possession, and in 1875 executed a deed of trust on the land to the firm of Constantine & Co. This firm was dissolved, and one Tyson, who was one of the members thereof, entered into possession of the land, claiming under the deed of trust executed by Loyd. After Tyson had gone into possession, the land was sold for the taxes of the year 1874 and purchased by the State, and in 1880 Tyson purchased the same from the auditor of public accounts, and in 1882 sold it to the defendant, Holmes. The plaintiff, who was born in 1859, instituted this action of ejectment against Holmes, who seeks to defend his possession under the tax-title thus acquired. [53] At the instance of the defendant, the court instructed the jury that if the defendant had been in the actual possession of the land for more than three years before suit brought, claiming the same under a sale for taxes made in 1875, then the plaintiff could not recover. The provision of the code, § 539,'Code of 1880, under which this instruction was asked, was not intended to apply to cases in which, if the tax-title were valid, the defendant could not avail himself of it as against the plaintiff. Its effect is to protect from assailment the tax-title of one who, being authorized under the principles of law to claim under a sale for taxes, finds his title, which, if valid, would protect his possession, attacked for irregularities existing in the proceedings of sale. It has no application in those cases in which, if the title was formally and substantially perfect, the defendant could not avail of it by reason of some personal disability, which would preclude him from asserting it as against another toward whom he owed the duty of discharging the taxes for which the sale was made. At the time of the sale for taxes, Tyson was in possession of the land as mortgagee under Loyd, who had entered upon the land under the claim of the widow, and though her life estate had terminated by death, Loyd and those claiming under him were tenants at sufferance to the heirs-at-law. Day v. Cochran, 24 Miss. 261. Under such circumstances, the purchase of the State’s title should be treated as a redemption, and ineffectual to divest the title of the heir-at-law. The judgment is reversed and cause remanded.