Upon consideration of the cause on rehearing, the majority of the Court are of the opinion that when all the allegations of the amended bill are duly considered, said amended bill was not entirely without equity and that the court below erred in granting the motion to dismiss the bill. Taking the facts alleged in the amended bill as true, in so far as they were well pleaded, as must be done upon a motion to dismiss the amended bill, it appears that there was a serious variance between the tax assessment, the notice of publication for tax deed and the tax deed itself, which tended to show prima facie that the property of the plaintiff below, appellant here, had been taken without due process of law, and that such allegations were sufficient to require the defendant to answer the amended bill. It may be that such amended bill can be clarified or strengthened by further amendments if duly applied for in the lower court. But the bill as already amended is not entirely without equity and our previous judgment of affirmance is hereby vacated and set aside, and this cause is reversed and remanded with leave to the lower court to entertain and consider any appropriate application which may be made to it for leave to further amend said bill.
Reversed and remanded, on rehearing, with instructions.
WHITFIELD, BROWN and CHAPMAN, J.J., concur.
BUFORD, J., dissents, adhering to original opinion. *Page 244