TaiLexi AI U.S. Case Law

McGehee v. Martin

E. F. McGehee v. Major W. Martin

McGehee v. Martin, 53 Miss. 519 (1876)
Download
Format
Include

Star paging (*137) is kept for pin cites.

Court
Mississippi Supreme Court · State Highest Courts
Decided
October 15, 1876
Judges
Chalmers
Citations
53 Miss. 519
Cited by 6
Headnotes
1. Tax Sal®. Day of sale. A tax sale made oil a day other than that provided by law confers no title. 2. Supreme Court. Practice. Error in admitting evidence. Where, in an action of ejectment, the weight of evidence on other points being with the plaintiffs, the defendant was allowed to introduce a void tax deed, purporting to convey title out of the plaintiffs, pending the litigation, and the jury were instructed as to the necessity of the plaintiffs having title at the time of verdict rendered, a verdict for the defendant will be set aside, and a new trial awarded. 3. Witness. Party incompetent against estate of decedent. Under the rule in Jacks v. Bridewell, 51 Miss. 882, the testimony of the defendant to establish his claim to the lands, by proving the execution of a deed, is of questionable admissibility in an action of ejectment against him by the heirs of the decedent. 4. Evidence. Admissibility. Objection must be made. Objections to the admissibility of evidence not made in the court below cannot be noticed by this court, and the rule applies to the testimony of a party seeking to establish his claim against the estate of a deceased person.
Summary
Error to the Circuit Court of Union County. Hon. W. D. Bradford, Judge. This was an action of ejectment by the heirs of John S. McGehee, against M. W. Martin. The plaintiffs showed a regular chain of title from the United States, down to John S. McGehee, and proved they were his heirs. The defendant, as a witness in his own behalf, testified that he saw one May sign a deed conveying the land to him. And the deed, not acknowledged, proved or recorded, on this testimony alone was admitted in evidence, without objection, on the ground of the incompetency of the party to establish his own claim against the estate of a deceased person, being made. The other facts appear in the opinion of the court. From a verdict and judgment for the defendant the plaintiffs bring the case to this court. 1. An unrecorded deed is riot admissible without due proof •- of its execution. Loch v. Jayne, 10 George, 157; Code, § 2302. See Sicard v. Davis, 6 Pet. 126; Grreenleaf v. Birth, 6 Pet. 304. 2. The tax deed was void on its face. Code 1857, p. 73, art. 19; p. 79, art. 35. 3. The charges for the defendant tended to mislead the jury, and should not have been given. 1. It is not perceived that there is any objection to the defendant’s charges: none is pointed out. 2. The testimony, conflicting, was fairly submitted to the jury. They have decided on the weight and credibility of the witnesses ; and this court has no power to interfere.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Chalmers

Text extracted by OCR from a scanned original; check the original for exact wording.

Chalmers, J.,

delivered the opinion of the court.

Inasmuch as the plaintiff in ejectment must show title in himself at the termination as well as at the institution of the suit, the defendant in the case at bar introduced in evidence a tax-collector’s deed, showing that the land in controversy had been sold for unpaid taxes pending the litigation.

This deed was void upon its face, and should have been *521 excluded; it showed a sale by the tax-collector, made on 7th of August, 1871. By the act of March 3, 1871 (p. 759), the first Monday of July was fixed as the day for selling lands delinquent for taxes, and by subsequent act of May 4 (acts of 1871, p. 690), the day of sale was postponed thirty days. The first Monday in July, 1871, was the third day of the month. Thirty days thereafter would be the 3d of August, which is the day on which the sale should have taken place. It is well settled that a tax sale made on the wrong day confers no title. Tebault v. Britt, MS.

We must think that the improper admission of the deed, accompanied as it was by an instruction informing the jury of the necessity that the plaintiffs should have title at the time of verdict rendered, controlled the result, since upon the other questions litigated the weight of evidence seems to be with the plaintiffs.

Under the decision in Jacks v. Bridewell, 51 Miss. 881 , the testimony of the defendant Martin is of very questionable admissibility, but no objection having been made to it in the court below, we cannot notice it here.

Judgment reversed and new trial awarded.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 6 cases

View all citing references →
1876–1877: 11878–1879: 11884–1885: 11906–1907: 21936–1937: 118762026peak 1906 · 2

Relies on it most ⓘ

  1. Harkreader v. Clayton56 Miss. 383 (1879)
  2. Kennedy v. Sanders43 So. 913 (Miss. 1907)
  3. McLemore v. Anderson43 So. 878 (Miss. 1907)
  4. Mead v. Day54 Miss. 58 (1876)
  5. Griffin v. Ellis63 Miss. 348 (1885)
  6. Bailey v. McRae169 So. 887 (Miss. 1936)

Most recent

  1. Bailey v. McRae169 So. 887 (Miss. 1936)
  2. McLemore v. Anderson43 So. 878 (Miss. 1907)
  3. Kennedy v. Sanders43 So. 913 (Miss. 1907)
  4. Griffin v. Ellis63 Miss. 348 (1885)
  5. Harkreader v. Clayton56 Miss. 383 (1879)
  6. Mead v. Day54 Miss. 58 (1876)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 1

DepthCaseCited by
Jacks v. Bridewell, 51 Miss. 881 (1876) 31

Keyboard shortcuts

/Focus the search box
j kNext / previous result
EnterOpen the selected result
xAdd / remove the selected result from the download list
n pNext / previous search term in a case
cCopy the citation of the current case
+ −Larger / smaller reading text
?Show this list