Dimitry v. Jones

115 So. 786, 149 Miss. 641, 1928 Miss. LEXIS 74

• Court: Mississippi Supreme Court
• Decided: March 5, 1928
• Docket: No. 26665.
• Status: Published

Opinion

Ethridge, P. J.

This is an appeal by Theodore J. Dimitry and others from a decree of the chancery court dismissing their bill of complaint by which they sought to recover certain lands from the possession of the appellee J. L. Jones, more particularly described as “that part of the northwest quarter (N. W. %) of section thirty- three (33), township seven (7) south, range twelve (12) west, south of "Wolfe river.” The land in question was acquired by appellee at tax sale in 1911, and in 1920 appellee confirmed his title against the appellants by a proceeding for that purpose in the chancery court. Appellants filed their bill in the present case, in 1925, attacking the validity of the tax sale on the theory that the land involved was a part of an old Spanish grant known as the Dimitry claim or grant; that the Dimitry survey was designated as “section thirty-seven (37) township seven (7), range twelve (12),” because so referred to in the field notes of the deputy surveyor who made the survey. They further contended that the United States government was without power to survey said grant according to the customary governmental sectional divisions, and that any assessment by the state of the land according to such sectional divisions was void and could not support a valid tax sale.

Numerous surveys, maps and plats, and voluminous correspondence were introduced on the trial of the cause in the court below. It appears that the land was originally owned by private persons under grant from the Spanish government when the territory involved was ceded to the United States government, and that by special act of Congress these titles were ratified and confirmed in the owners of the property. Nevertheless, the United States government, in surveying the lands, laid off the lands involved in this suit in regular governmental sections, townships, and ranges.

The chancellor upheld the validity of the tax sale, and further found as a question of fact that appellee had been in the actual occupation of the land, under the tax title, for a period of more than three years next preceding the institution of the present suit. Prom this decree of the chancellor this appeal has been prosecuted here.

The chancellor rendered an opinion, which appears in the record, in the course of which he said that there are several ¡township plats on file respecting township 7 south, range 12 west; that the first one, and the one which shows the whole township, is one approved February 4, 1847; that this shows the whole township' was surveyed out into regular sections, and, among the sections, shows section 33 as a regular section of approximately six hundred forty acres. He also said that there is another plat of part of the township, which plat was approved October 30, 1849, and shows section 33 as a section regular in shape and size, but as being almost entirely within the Dimitry claim; that no section 37 appears on this plat, although it was made up and approved after the plat of the Dimitry survey; that on a supplemental plat, made in the General Land Office in Washington, and approved apparently on March 21, 1906, there does appear a section 37 in township 7 south, range 12 west, but that this section 37 is entirely north of Wolfe river, and does not touch section 33; that it is a part of what was section 31 of said township and range.

The chancellor held, in his opinion, that the state, in making up its land assessment rolls, can use any appropriate description, and that the statute had prescribed a method of assessment which was valid in this case. To quote from the opinion:

“The state, in its duty to government, can adopt any method for making up its land assessment rolls that it deems best only so long as the method adopted conforms to the constitutional requirements of reasonable • notice and due process. Section 6917, Hemingway’s Code 1917 (section 8213, Hemingway’s Code 1927), provides how land assessments shall be made up (1) as to those lands regularly surveyed; and (2) it goes on to provide that ‘lands not surveyed according to the plan of the government surveys shall be assessed.by the designation used on the government maps, or by other descriptions or names by which they may be distinguished.’ If we consider-the lands here in question as presenting: a reg nlar survey according to the plan of the government surveys, then the description in the assessment as ‘N. W. Vi Sec. 33,’ is undoubtedly good. If, however, the effect of the Phelps survey was to displace the regular plan and convert the lands therein into the class of lands not surveyed according to the plan of the government surveys, then the statute provides that the lands therein ‘shall be assessed by the designation used on the government maps.’ In every government map introduced in evidence or to which the attention of the court has been called, including the map of the Dimitry survey, touching this township 7 south, range 12 west, there appears on it this section 33 in regular shape, and as already mentioned section 37 is shown on the last map as being some distance to the west and entirely on the other and north side of the river. The ‘ designation used on the government maps’ of section 37 is therefore of an entirely different piece of land from that here in suit, for this land here is wholly on the south side of the river; and if the assessor had assessed this land here in controversy as being in section 37, the complainants could then have successfully insisted that it was not their land thus assessed and sold, but lands entirely on the other side of the river from them. The land here in suit is not ‘designated on the government maps’ as section 37, but as section 33. It was so assessed, and the description being good for an assessment of it, is good for a tax sale and tax deed of the same, since the latter are required to follow and do strictly follow the assessment on which.they are based.”

We think this is a proper construction of the assessment statute. Although the Dimitry and other claims were recognized by the government, and this recognition would prevail over a title granted by the government under a survey made by the government, still the land, when it became private property, was subject to assessment for taxation, and to all the laws regarding that subject. It also became subject to the statutes of limitation as to adverse possession, and is controlled by those statutes.

This is not a case of conflicting claims between the Spanish government and the United States government; nor of conflicting titles under grants from different governments. The original ownership was unquestionably Avith the owners of the Spanish grant, and the treaty gave the government no power to sell or dispose of it. Nevertheless the land was surveyed and laid off in regular governmental sections, townships, and ranges, and the state government had the right to assess the property according to these governmental subdivisions. Whether they were wrongfully made, or not, is not material for that purpose. The statute quoted by the chancellor in his opinion directs the assessor to assess lands in the manner in which it was assessed here, and the oAvner of the land is charged Avith notice of the statutory method of making the assessment and of the laws bearing on the sale and the possession under claim after sale was made and the time for redemption had expired. It was, therefore, competent for the court to confirm the title, which it did in the suit of 1920.

We are of the opinion that the assessment, sale, and confirmation proceedings Avere legal and regularly made, and that the title vested through them to the appellee.

As stated by the chancellor, this case is not controlled by the authorities relied upon by the appellant. Weston Lbr. Co. v. Strahan, 128 Miss. 54, 90 So. 452; Goff v. Avent, 122 Miss. 86, 84 So. 134; Id., 129 Miss. 782, 93 So. 193; and Dedeaux v. Bayou Delisle Lumber Co., 112 Miss. 325, 73 So. 53. Quite different questions would arise had not the tax sale under the statute mentioned and the statutes of limitation come into play. Had it been a contest between claimants under different grants, with no statutes of limitation or tax sales involved, the contention of the appellant might be maintained.

We find no error in the decision of the case, and the judgment of the lower court Avill be affirmed.

Affirmed.

Suggestion oe Error.

Appellants with respect suggest the following, errors in the decision of the court heretofore rendered herein, to-wit:

I. The court erred in considering that the assessment and tax sale in this case, upon which appellee’s title depends, referred to any United States maps, plats or surveys, except the one having a legal existence at the date of sale, for a description of the property levied upon and sold.

II. The court erred in considering that the issues and facts of this case are different from those decided by this court in the cases of Weston Lumber Co. v. Strahan, 128 Miss. 54; Goff v. Avent, 84 So. 134, 93 So. 193; and Dedeaux v. Bayou Delisle Lumber Co., 73 So. 53; or Lott v. Rouse, 111 So. 838.

III. The court erred in considering in evidence the plat of township 7 south, range 12 west, dated February 4, 1847, as the official map of the United States surveys in said township and range, because said plat was vacated and disregarded by the General Land Office a short time after it was made.

. IY. The court erred in considering that the Phelps’ survey, field notes and plat of the Dimitry grant, approved by the surveyor general, south of Tennessee on September 19,1849, was not the official United States government map of the land within the Dimitry claim and of the section made fractional by said grant.

Y. The construction of the state statute and tax deed, upon which appellee’s title depends, was contrary to the provisions of the Act of Congress, dated August 5, 1848, entitled “An Act supplemental to an act to confirm the survey and location of claims for land in the state of Mississippi,” etc. And also, the Act of Con gress, dated March 2, 1837 entitled “An Act to confirm the claim of the heirs of Micheál Dragon, ’ ’ etc.

VÍ. The court erred in disregarding the field notes, approved by the surveyor general’s office which appear on the face of the Phelps’ map, as describing and identifying the private claim of Dimitry, the same as the lines and figures pictorially represented on said map.

VII. The court erred in considering that the supplemental plat of fractional section 1, township 8 south, range 12 west, dated March 31, 1906, had anything to do with this case.

VIII. The court erred in considering that the supplemental plat of said township and range, dated October 30, 1849, contradicted or varied the Phelps’ map and survey of said land, in fact, or had any such legal effect.

IX. The court erred in considering that the government maps in evidence showed section 33 of township 7 south, range 12 west, to be a regular section, and included any land within the private claim of Dimitry.

X. The court erred in disregarding the testimony of the expert civil engineers and surveyors introduced by appellants, who explained and interpreted for the court the meaning of the lines and symbols on the United States government plats and surveys, to the effect that section 33 of said township and range was a fractional section, and included no land within the boundaries of the Dimitry grant. In that, there was no proof to the contrary, and the “common knowledge of courts and juries” should not be permitted to disregard such evidence.

XI. The construction placed upon said statute and tax deed is contrary to the provisions of section 2396, United States Revised Statutes.

XII. Appellants further suggest that the judgment of this court in this case is repugnant to and in conflict with the laws of the United States, in that the construction placed upon said assessment and tax deed operated to deprive appellants of their property without due process of law, as secured to them by the Fourteenth Amendment to the United States constitution; and, is in conflict with the treaty of the Louisiana cession between the United States and France, ratified October 31, 1803; and, is contrary to the provisions of the Act of Congress of May 18, 1796, and the Amendment thereto, approved March 3, 1803, which provided for the survey and sale of the public lands of the United States'; and, is contrary to the rules and regulations promulgated by the General Land Office under the Acts of Congress giving instructions to surveyors and deputy survey and subdivision of the public lands.