Hart v. Bloomfield , 66 Miss. 100 ( 1888 )

Cooper, J.,

delivered the opinion of the court.

It is argued by counsel for appellant that the decree must be reversed, if for no other reason, because the cause was set for hearing one day before the expiration of the five months allowed by law for the taking of proof after answer filed.

The answer of the defendant was filed on March 13, and the cause was set for final hearing by the defendant on the 14th day of August following; but counsel for appellant contend that when filed the answer was not sworn to, but that the jurat was made on the following day, wherefore that day should be taken as the date ■of the filing of the answer. There are two replies to this position, either of which is sufficient: The record shows that the answer was subscribed by the defendant and sworn to before the clerk on the day it was filed”. Immediately following the signature of the defendant is this certificate by the clerk, “ sworn to and subscribed before me, this 13th March, 1888, F. S. Hewes, clerk.” On the following day an additional and more formal jurat was filed; but this did not have the effect of controlling the date of the filing. But it also appears by the record that the complainant was present by her counsel and took part in the hearing of the cause, without objection on her part that it had been prematurely set for hearing. This was a waiver by her of her rights to further time in which to take proof under the statute, if the hearing was in fact within five months from the filing of the answer.

The decree must be affirmed, regardless of the validity of the defendant’s tax-title, for the reason that the complainant has not shown that she is either the legal or equitable owner of the lands in controversy. It is well settled that a complainant seeking to ¡secure cancellation of the title of the defendant must show himself to be the owner, in law or in equity, of the subject-matter in dispute. If he is not, he has no reason to concern himself about the title of his adversary. The defendant denied complainant’s averment that she was the owner of the land described in her bill, and this devolved on her the burden of establishing that fact. Huntington v. Allen, 44 Miss. 654; Adams v. Harris, 47 Miss. 144; Walton v. Tusten, 49 Miss. 569 ; Handy v. Noonan, 51 Miss. 166 ; Cook v. Friley, 61 Miss. 1; Phelps v. Harris, 51 Miss. 789; Griffin v. Harrison, 52 Miss. 824; Harrill v. Robinson, 61 Miss. 153.

The decree is affirmed.

Counsel for appellant filed a motion to correct the decree of affirmance so as to make it conform to the opinion, and recite that the decree of dismissal is affirmed regardless of the validity of the defendant’s tax-title, or without prejudice to the appellant’s right in any action at law that may hereafter be brought by or against appellant. After argument the motion was denied.