¶1 dissenting:
¶2 It is with regret that I find myself unable to concur with the decision which the majority of the Court has reached. However, I agree with the opinion so far as it holds that the curative provisions of Code, 11-10-26, which make a tax deed “prima facie evidence” that the material facts recited therein are true, does not operate to take the place of the notice required by Code, 11-10-16 (c). The difficulty I see with the decision of the Court is that the record does not justify the holding that the tax deed in question was invalid because of lack of notice to plaintiffs. It may be true, as stated in point 1 of the syllabus, that “where death is proven, without more, intestacy of the decedent will be presumed.” The record here, however, does not disclose that the clerk had any record or means of knowledge available that the decedent had, in fact, died. Nor does the record disclose whether the notice by publication included the unknown heirs of decedent. In fact, this case, involving as it does the adequacy of the notice, was heard in this Court on a record which does not contain therein by stipulation or exhibit the *14 notice sought to be appraised; and the oil and gas lease claimed to be of record in the county court clerk’s office, in which the plaintiffs are claimed to have joined, cannot be taken as having put the county clerk on notice of C. A. Gates’ death, and that the lessors therein were his heirs-at-law. I say this for the very reason that this lease, if pertinent to the matters in issue, likewise was not a part of the record.
¶3 In all deference, I am fully convinced that there is such a dearth of material evidence that this Court was not justified in reaching its decision, and that the trial chancellor’s decree should be affirmed. The burden of proof rested on the plaintiffs to prove their case which, in my opinion, they have not done. If this case should be appraised most favorably to plaintiffs, they would be entitled to nothing more than an order remanding the case for further development.