Brougher v. Stone

Woods, J., delivered the opinion of the court. The appellants exhibited their bill in the chancery court of Quitman county against appellee, and several others, averring their ownership of lots 5 and 11, section 35, township 28, range 2, as well as other lands, not necessary to be described by us, and prayed cancellation of all claims to the lands set up by the defendant and others, as clouds upon their title. The defendant answered, denying that complainants had title to lots 5 and 11 (and other parcels claimed by him), and set up title in himself under various tax conveyances. The bar of three years of § 539, code 1880, was also pleaded by the defendant. The bill, as we gather from the utterly unsatisfactory record, .was dismissed by complainants as to all parties defendant, except appellee. It was by them dismissed as to one of the parcels of land claimed by appellee. Touching lots 5 and 11, section 35, there is the written agreement of the parties that, S. C. Stone, the appellee, had actual adverse possession and occupation of said lot 5 for more than three years next before the commencement of the suit, under his deed made by the auditor on April 21, 1881, which, by the agreement, was made [651] evidence. This conveyance embraces also lot 11. From this deed, and from the sales lists of the tax collector, it appears that these two lots, 5 and 11, were sold by the tax collector in May, 1875, to the state for the unpaid levee taxes due on them for the year 1874. Conceding the utter invalidity of such sale, it is nevertheless true that the lands were salable — subject to sale — because of the delinquency of the owners in nonpayment of taxes due thereon, and there was an actual sale to the state by the proper officer, but on the wrong day and under a law not applicable to these lands. Six years later appellee purchased from the state, and obtained the auditor’s deed, which was promptly put on record in the proper county, and from that time until the trial was had the appellee has paid all taxes on the lands. It is agreed, we have seen, that under his auditor’s deed of 1881, appellee had been in the adverse possession and actual occupation of the lot 5 for “more than three years next before the commencement of the suit. His title to lot 5 has become unassailable under § 539, code 1880. It will be remembered lot 11 was conveyed with lot 5 in the same deed from the auditor. The two lots are contiguous, and it follows that appellee’s possession of 5 carried with it, as a legal consequence, possession of 11 also, and appellee was therefore entitled to the decree in his favor as to both of these lots. Except to the extent we have gone, we have been unable, from careful examination of this fragmentary, obscure, and most imperfect record, to determine anything with safety, and we shall therefore affirm the decree of the court below in dismissing the bill as to lots 5 and 11, section 35, township 28, range 2, and reverse as to the other lands, to the end that the parties may, if desired, take such further action as shall seem to them proper. Reversed in part.