Foote v. Dismukes
Foote v. Dismukes
Opinion of the Court
delivered the opinion of the court.
It is impossible for us to imagine upon what theory of law the court below admitted the evidence of the defendant as to the condition of the title to the lands in his children. The action was possessory, under § 538, code of 1880. Who the delinquent tax-payers were was wholly immaterial; what their ages was equally immaterial. The minor children of the defendant were not parties to the suit; but, if they had been, their minority did not exempt their lands from taxation.
This manifest and fatal error is not attempted to be maintained by appellee’s counsel; but his sole reliance for an affirmance rests upon objections to the bill of exceptions which are rather technical, and are unsupported by a fair interpretation of the record. It is sufficient to say we do not concur with counsel in his contention on this point.
Excluding the evidence of the defendant, as should have been done, the plaintiff', on the record before us, was entitled to have had a peremptory charge.
Reversed and remanded.
Reference
- Full Case Name
- H. W. Foote v. D. G. Dismukes
- Status
- Published
- Syllabus
- 1. Tax-tithe. Unlawful detainer. Gode 1880, § 538. Title not involved. In an action oí unlawful detainer, brought under l 538, code 1880, to recover land purchased at tax-sale, the action being purely possessory, inquiry as to the condition of the title at the time of the sale is immaterial. It is no defense that-the title was not in the defendant, but in his minor children entitled to redeem. 2. Practice. Reserving exceptions. When timely. Bill of exceptions. Where a bill of exceptions sets out in order a motion to exclude defendant’s evidence, the order overruling this, defendant’s refused charges, a peremptory instruction for defendant and verdict and judgment, and then recites, “to all which rulings, charges and judgment the plaintiff excepts and tenders this his bill of exceptions, and asks that ■ the same be signed and made a part of the record in this cause, which is accordingly done in open court,” this sufficiently shows a timely reservation of exceptions to the several rulings and instructions.