Greer v. Wheeler ( 1875 )

OPINION ON REHEARING.

Beck, J. —

A petition for a rehearing having been filed in this case, we are led to believe from its perusal that we have not succeeded by the foregoing opinion in making ourselves clearly understood. We supposed that our language would be interpreted in the light of the many familiar decisions we have heretofore rendered upon questions growing out of the sale of two separate tracts of land for taxes. In. our opinion they are entirely in accord with the one above announced, and, when considered together and in view of familiar rules of evidence and procedure in the courts, their harmony will be at once seen. That we may be no longer or further misunderstood, we add here a few words of explanation. •

We have repeatedly held that a sale en masse of two separate tracts of land is void, and that the deed made thereon showing such fact is void and will defeat the title claimed under the sale. All these decisions, however, were in cases where no attempt was made to support the deed by evidence showing that the two tracts were occupied and used as one parcel and for one purpose. Where so used we have held that they may be sold and deeded together. Weaver v. Grant, supra.

The word void, as we applied it to such sales and deeds, was not in such a sense as to express the idea that they could not be shown by other evidence to be valid; but rather with the meaning that they were prima faeie void. An instrument that without the support of evidence to establish its validity is inoperative and of no effect, may properly be called void in the absence of such evidence. In that sense, heretofore, in speaking of tax deeds showing sales of distinct parcels of lands together, we have used the word.

Plaintiff upon the trial had the right to offer the evidence in support of his title in the order that to him seemed most convenient. He could introduce the deed and follow it with evidence supporting its validity. It was not so void that it could not be supported. If he failed to support it by evidence establishing its validity, it would be considered void and held not to convey the title of the land. If supported with sufficient evidence it would be held valid and sufficient to convey the title.

We were unfortunate in the attempt to express, in the fifth sentence of the foregoing opinion, our meaning so clearly as to be beyond criticism, which keeps out of view the foregoing familiar principles of law. This would have been avoided had we clothed the idea which we intended to convey by the sentence in the following language, which expresses our true meaning:

“The deed was not void upon its face so that it could not he supported by evidence, nor, indeed, does it show conclusively an unlawful sale, for two tracts or lots of land may be sold for takes together where they are used and occupied as one parcel.”

We think we have now expressed ourselves with sufficient fullness and clearness, and that the point we decide will not be misajiprehended. We are under obligation to counsel for calling our attention to this matter by the petition for a rehearing. We adhere to the conclusions of the foregoing opinion.

Affirmed.