Cuevas v. Cuevas

110 So. 865, 145 Miss. 456, 1927 Miss. LEXIS 132

• Court: Mississippi Supreme Court
• Decided: January 17, 1927
• Docket: No. 26130.
• Status: Published

Opinion

ANdersoN, J.,

delivered the opinion of the court.

There are two of these cases. By consent of the parties they were consolidated and tried together. They were hills brought by appellants in the chancery court of Harrison county. The bills contained several different features. Their main purpose was to establish the right and title in favor of some of the appellants, to the timber on two forty-acre tracts of land in Harrison county, and cancel the claim to such timber by appellee Ingram-Day Lumber Company, and recover damages from Ingram-Day Lumber Company for the timber cut and removed by it from the two forty-acre tracts. The bills sought also, on behalf of certain of the appellants who were minors, to redeem their interest in the two tracts of land from tax sales theretofore made. Another feature of one of the bills was to establish a tax title in favor of one of the appellants, to an interest claimed by him m one of the forty-acre tracts. There was a trial on the bills, answers thereto, and proofs, and a decree in favor of ap-pellees in both cases, dismissing appellants’ bills. From that decree appellants prosecute this appeal.

There are two questions for decision common to both cases. There is another question arising alone out of one of the cases. In disposing of the questions we shall undertake in connection therewith to state the controlling facts out of which each question arises.

On October 20,1906, Roman Cuevas and his wife, Anet, conveyed to appellee Ingram-Day Lumber Company the timber on the two forty-acre tracts of land involved. The deed of conveyance contained the following provision:

“It is especially covenanted and agreed that as to each forty (40) acre tract herein described and conveyed this deed shall continue and remain in force until the said Ingram-Day Lumber Company, or their successors and assigns, commence to cut and lumber the same, and for ten (10) years thereafter and then to become void and of no effect, but the rights of way of said Ingram-Day Lum- her Company, or their successors and assigns for railways, tramroads or dirt roads, whether main spur tracks or roads, shall remain in full force.”

The question first to be considered turns upon the proper construction of this clause in the deed:

“This deed shall continue and remain in force until said Ingram-Day Lumber Company, or their successors and assigns, commerce to cut and lumber the smne, and for ten years thereafter, and then to become void and of no effect.” (Italics ours.)

A few months before this deed was made there had been an unusually destructive storm in South Mississippi, which had blown down a very large number of pine trees in that section. .This was known, of course, to the parties to this deed, as it was to.the people generally of that section of the state. Appellee Ingram-Day Lumber Company, beginning soon after the execution of the deed, and continuing not later than 1907, salvaged the down timber on the two forty-acre tracts of land. They cut and lumbered none of the standing timber on the land until 1916. From the time they began to cut and lumber the standing timber until the filing of the bills in these cases covered a period less than ten years. Therefore, if the ten-year time limit set out in the deed only began to run when appellee Ingram-Day Lumber Company began to cut and lumber the standing timber, their right to cut and lumber such timber at the time of the bringing of these suits had not expired. And if their right had not expired appellants had no right to the standing timber, and were not entitled to recover damages for that which had been cut and lumbered since 1916. By the terms of the deed not only the standing timber was conveyed, but the down timber as well, that clause of the deed being in this language: “All of the timber now or hereafter growing, standing, lying, or being, on the following described land.” The evidence is varying as to how much down timber was on these two tracts of land. It ranged from something like twenty trees to one hundred trees. It was necessary to remove the down timber to prevent its being destroyed by worms. Appellee Ingram-Day Lumber Company had no sawmill at that time in the immediate section where this land is situated. In order to salvage the down timber it was therefore necessary that it be hauled a long distance to a sawmill. This was done. Only the down timber was removed and lumbered at that time. None of the standing timber was cut and lumbered, as stated, until 1916. The custom of the sawmill companies in South Mississippi was, when they began to cut and lumber standing timber on a piece of land, to take all the merchantable timber therefrom before they stopped. The phrase “cut and lumber” must be construed in the light of such custom as well as the surrounding facts existing at the time of the execution of the deed. Down timber does not have to be cut in the sense that standing timber does. It is true that to lumber it, it is necessary to cut it up into the proper lengths. On the other hand, standing timber must be cut down and then cut into lengths in order to be lumbered. We are of opinion that, taking the language-of the phrase itself, “cut and lumber” it meant the cutting and lumbering of the standing timber, and not -the down timber; and if there be any ambigmity in its language we think it is cleared up by the surrounding facts and circumstances existing at the time of the execution of the deed, which show that that was its meaning. We think the deed meant that the ten-year time limit should not begin to run until the grantee in the deed began to cut and lumber the standing timber; that in the meantime the grantee was given the right to remove and lumber the down timber without setting the ten-year time limit in motion. It follows from these views that appellants must fail in so far .as they seek to recover damages of the .appellee, Ingram-Day Lumber Company for cutting and removing the standing timber from the land.

Both of the forty-acre tracts were sold for their taxes after 1906, and purchased by one Lowery. The two-year period allowed by statute for their redemption from this tax sale had expired some years before the bills iu these cases were filed. Lowery by deed conveyed his tide acquired by the tax sale to appellee Ingram-Day Lumber Company. Some time after that tax sale and before the bringing' of these suits, one of the forty-acre tracts was sold again for is taxes, and purchased by appellant C. E. Cuevas. The two-year period allowed by statute for redemption from this tax sale had also expired when the bills were filed in these causes. The tax sale of this forty-acre tract was for its taxes of 1921. The sale by the tax collector not having been made on the first Monday of May, or within three days thereafter, as provided by chapter 137, Laws of 1922, the board of supervisors, as it was authorized by statute to do, passed an order undertaking to fix a day in July, 1922, for the sale of the delinquent lands not sold at the regular time fixed by statute. That order was passed at the June, 1922, meeting. Instead of ordering the tax collector to sell the lands delinquent for their taxes, on the first Monday in July, 1922, as the board doubtless intended to do, the order directed the sale to be made “on the first Monday in July, 1921,” which, of course, was an impossible date. At the meeting of the board of supervisors in 1925, the board undertook to correct that order by passing another order reciting that they had intended, in the former order, to fix the first Monday of July, 1922, for the sale, instead of the first Monday in July, 1921, as the order read. In other words, after the sales had been made the board of supervisors undertook to correct the error in their order as to the date of sale. The chancellor held the sale o£ the forty-acre tract involved void, and therefore that appellant C. E. Cuevas got no title by virtue of such sale.-

Appellants contend that the board of supervisors had the right to correct the former order of sale at a subsequent meeting of the board so as to make the order conform to the order they intended to enter. To sustain that position they rely on cases decided by this court, and other courts, holding that a court has the inherent power, at a subsequent term, to enter the judgment which it had rendered at a former term, but, through clerical error, had not been entered. We do not think those cases have any application to the character of order here involved— an order fixing a day for the sale of lands delinquent for their taxes- T'ax sales are proceedings in invitum. The statutes authorizing such sales must be strictly construed as to the time and place of sale. The time and place of sale are fundamental. Both must be fixed in order to have a valid sale. The board of supervisors alone had the authority to fix the time of sale in the order made on their minutes, which they later, at a subsequent meeting, made an effort to correct. The order fixed an impossible day for the sale. We think that was equivalent to fixing no day at all. In this state boards of supervisors are very largely legislative bodies. It is true they are also quasi- judicial bodies, for they must exercise discretion and judgment. But they are not courts in the sense that the circuit and chancery courts are courts. Their jurisdiction and authority are fixed by statute. They have no inherent powers. They have no authority at a subsequent term to correct their orders and judgments entered at former terms. Lafayette County v. Parks, 132 Miss. 752, 96 So. 466. The order of the board in this case, undertaking to correct the former order, was simply no order at all, because it failed to fix one of the fundamentals of a valid tax sale, namely, the day of sale. We think therefore that appellant C. E. Cuevas got no title by virtue of that' tax sale.

Those of the appellants who are under disability of minority seek to redeem their interests in the lands involved from the Lowery tax sale (appellee Ingram-Day Lumber Company claims title through that sale by purchase from Lowery), and to sell the land for partition among those entitled thereto according to their interests, in order to raise sufficient funds out of their interests to make redemption. From the record it appears undis- pitted that the appellants under disability .of minority have no other property than their interests in these lands with which to raise funds to redeem the same. Under the statute the minor appellants owning' interests in these lands have two years within which to redeem after reaching their majority. After the expiration of the two-year period for redemption, which applies to all except those under disability, tax deeds are delivered by the chancery clerks to the purchasers. If the statute was complied with, Lowery, the purchaser of these lands, received his deed from the chancery clerk, and doubtless placed it on record. If the appellants whose time for redemption has not expired on account of their disability ^should offer to redeem, or redeem now,' there still will be outstanding the Lowery tax deed, and his deed to ap-pellee Ingram-Day Lumber Company. They would be without remedy except in a court of equity to have these deeds canceled so far as their interests in the land are concerned. We think under these conditions such of the appellants as are now entitled to redeem from that tax sale are without an adequate remedy, except in a court of equity. In the case of Swalm v. Sauls, 141 Miss. 515, 106 So. 775, we held, under the peculiar facts of that case, that a court of equity has jurisdiction of a bill to redeem. In 37 Cyc., p. 1419. (chapter on Taxation), it is stated that if the owner of land is prevented from redeeming on account of his minority, or other legal disability, he may resort to a court of equity to redeem. We think Johns v. Smith, 56 Miss. 727, is strongly persuasive in favor of this view. That case also sustains the contention of appellants under disability of minority that under the facts of this case they are entitled to have their interests in these lands sold to raise the necessary funds with which to redeem them from the tax sale in question.

The appellants under disability of minority who have the right of redemption from the Lowery tax sale of their respective interests contend that under the facts of this case they are entitled to a partition of the lands, or a sale thereof, for a division of the proceeds among the tenants in common. After they have redeemed they will own undivided interests in the land. . The remaining undivided interest will he owned by appellee Ingram-Day Lumber Company. The latter, under its timber deed, owns the timber on the land, with the right of removal within the time limit fixed by the deed. Therefore, in addition to the ownership of the soil by persons who are cotenants, one of the cotenants, appellee Ingram-Day Lumber Company, separately owns the standing timber on the land. The other cotenants have no interest therein, except what may be left after the right of appellee Ingram-Day Lumber Company expires. The partition of lands, and the sale of lands for a division of the proceeds thereof among joint tenants, tenants in common, or coparceners, is not dependent upon the common law or the general principles of equity, but are governed by our statutes in reference to partition of lands. Under section 3521, Code of 1906, section 2833, Hemingway’s Code, providing for the partition -of lands held by joint tenants, tenants in common/or coparceners, an owner of land who has sold to another the standing timber thereon is not entitled to partition, since the parties do not hold as provided by the statute. Forest Product Co. v. Buckley, 107 Miss. 897, 66 So. 279; P ankey v. Howard, 47 Miss. 83. In the latter case it was further held that there could be no sale of lands for division of the proceeds among eotenants unless the cotenants are entitled to partition of the lands. In view of the character of the interests of the parties owning the land involved and the timber thereon, certainly there could be no partition in kind.

It follows from these views that the appellants who are under disability of minority owning an interest in the land involved, have the- right to have such interests sold, if necessary, in order to raise funds with which to make redemption of the land from the Lowery tax sale. In all other respects the decree of the chancellor should be affirmed. The case therefore will go back for the pur pose alone of enabling those of appellants entitled thereto, to have whatever interest they may own in the land involved sold for the purpose of raising’ funds with which to redeem the same from the tax sale.

Affirmed in part, and reversed in part and remanded.