Opinion.
Campbell, C. J.:As to the land described by the bill as acquired by the State, under the Abatement Act of March 1, 1875, and conveyed to the appellant, the bill does not show any defect in his title. Cochran v. Baker, Miss, opinion. And as to the other land, the same is *414true, because tbe only grounds of alleged invalidity as to it that tbe taxes for which the sale in 1880 was made were excessive in amount, and that the assessment roll was not approved by the board of supervisors at the proper time. The first of these grounds is unavailing because the law .required a tender of what was due (§42 of Acts of 1878, in relation to public revenue), and the bill does not show that it was made, and the second is not a valid objection, for the roll may have been approved by the board at another time, and must be presumed to have been under the allegations of the bill. Wolfe v. Murphy, Miss. opinion.
It is manifest from the record that the case was tried upon a different theory of the law by both parties, and as we dispose of the case on the demurrer, will remand it, so that application may be made by the complainant to the Chancery Court for leave to amend his bill, if he shall desire.
Decree reversed, the demurrers of Sutton and Thompson sustained, the bill dismissed as to Thompson, and causes remanded.