Anthony v. Manlove

This was an action of ejectment against a purchaser at a tax sale. There was an affidavit that the plaintiff had made the tender, as prescribed by the second section of the act of January 10, 1857, being section 2649 of Mansfield’s Digest. The sufficiency of the affidavit was not controverted, but the defendant sought to traverse its allegations by his answer. This the court declined to permit, and upon a trial rendered judgment for the plaintiff,

tax^1 aCnd — Con^ ófteñdei-.affidav‘l The statute does not in terms provide that any issue may be made upon the allegations of the affidavit. Its language is plain, and is fully satisfied by the making and filing of the affidavit. There is no wise or beneficent purpose to be accomplished by the act, which would justify the extension of its operation beyond its letter; besides, being penal in its nature, it should be strictly construed. If issue could be taken on the affidavit, and upon the trial it was found that a sum was due for taxes and improvements slightly in excess of the amount tendered, the action would fail. Such a contingency not only might, but in all probability would, very often occur, and thus defeat justice; but the meaning of the statute should not be extended beyond its letter to accomplish such results.

The other points presented in this case are controlled by the case of Sims v. Cumby, ante, p. 418.

Upon the findings of fact by the court, judgment should have been rendered for appellant upon his plea of limitation. As the appellee is a minor, he may, if he is so advised, reform his complaint, and convert the action into a suit to redeem.

Reverse and remand.