Leavenworth v. Claughton

19 So. 2d 815, 197 Miss. 606, 1944 Miss. LEXIS 326

• Court: Mississippi Supreme Court
• Decided: November 27, 1944
• Docket: No. 35718.
• Status: Published

Opinions

Appellant, Leavenworth, was the owner in fee simple of the land hereinafter described and remains such owner unless his title was lost by the tax sales here in question. On the assessment roll for the year 1930 there was assessed to appellant as owner, and on line 11 of the page covering Secs. 6 and 7, Tp. 1, N.R. 13, the lands as follows: S. 1/2 of S.W. 1/4 N.W. 1/4 of S.E. I/4 S. 1/2 of S.E. 1/4 Sec. 6, Tp. 1, N.R. 13, assessed valuation $1,000.

And on line 22 of the page, the land of appellant in Sec. 7 was separately assessed as follows: All except N.E. I/4 of N.W. 1/4 Sec. 7, Tp. 1, N.R. 13, $3,000.

It will be seen from the descriptions that, as located on the ground, the land constituted one tract of contiguous subdivisions. The taxes for the year were not paid and on the first Monday, the 6th day, of April 1931, the tax collector sold the lands to the state, but in making the sale he sold the land in Sec. 6 by one sale, No. 217, and the land in Sec. 7 by another, No. 218, as shown on the face of his certified list of sales to the state; so that he made two sales of one contiguous tract owned by the same owner, and the sales having been made under Sec. 3249, Code 1930, as it then stood, they were invalid. Gregory v. Brogan, 74 Miss. 694, 21 So. 521; Wilkerson v. Harrington, 115 Miss. 637, 76 So. 563; Carter v. Moore, 183 Miss. 112, 183 So. 512; also Cox v. Richerson, 186 Miss. 576,191 So. 99, 124 A.L.R. 1138. Had the sales been subsequent to the amendment made to Sec. 3249, Code 1930, by Chap. 69, Ex. Sess. Laws 1938, Sec. 9923, Code 1942, they would have been valid, but, of course, that amendment can have no retroactive effect.

Appellee stresses the fact that, in his list of lands sold to the state, the tax collector certified that he made the sales "pursuant to the requirements of law" and appellee argues that, inasmuch as the law required the tax collector to make one sale of the one tract, it must be presumed that he acted accordingly, and Jones v. Seward, 196 Miss. 446, 16 So.2d 619, is cited. The presumption raised by the general recital is overcome here, however, by the specific disclosure in the body of his list that he made two sales, No. 217 and No. 218.

Appellee asserts, and the court so held, that after she had obtained her forfeited land patent from the state she went into the possession of the land, and remained in possession for more than two years next before the cross bill was filed by the appellant, and in that connection she invokes Chap. 196, Laws 1934, Sec. 717, Code 1942. A careful examination of this record discloses that the first act of appellee evidencing anything which may be considered as the taking of an adverse possession was when appellee had the land surveyed in October, 1940, and the cross bill by appellant challenging the tax sales was filed in September, 1942, or within less than two years. Prior to October, 1940, the lands were uncultivated, unenclosed cut-over acreage, and all that appellee had done to or with the lands was to visit the property, but doing nothing thereon which would arrest the attention of an owner. The affirmative of two years' adverse possession is not shown under any rule, however liberal, that can be found in our books.

It is evident that appellee is relying upon the supposed effect of the mere elapse of two years from the effective date of the Act, Chap. 196, Laws 1934, Sec. 717, Code 1942. Arguments continue to be made before us, as has been made here, that it is not only within the letter of that statute, but was the intention of the legislature in enacting it, that, regardless of possession, actual or constructive, the completion of the two years' limitation therein prescribed would extinguish all the right and title, including the right of possession, of all persons whomsoever except the state and its patentees. But whatever else may have happened, the principle announced in Dingey v. Paxton, 60 Miss. 1038, has withstood the challenges of the years, and still fully stands, that it is not within legislative power to divest an owner of his land, when he holds by a fee simple title with nobody else in possession, and transfer it to another; and as this may not be done directly, it may not be done indirectly by an enactment the effect of which is to cut down the ownership to a mere right of action, and that even that shall be lost unless asserted within the grace of a prescribed period. If, then, we had been obliged to look upon the statute according to its letter and asserted intention, we would have had to declare it unconstitutional.

We were obliged, therefore, in order to bring it within constitutional limitations, to hold that the two-year period of limitation under the statute does not begin to run until the possession of the true owner is invaded or disturbed by or through a claimant under the alleged tax sale, and we thought we had made this plain in Grant v. Montgomery, 193 Miss. 175,5 So.2d 491, and its review of the cases therein cited. If further clarification be necessary, we again undertake it, and hereby state and hold that the two-year period of limitation under Chap. 196, Laws 1934, Sec. 717, Code 1942, does not begin to run until the possession of the true owner, whether that possession be actual or constructive, is invaded or disturbed by or through a claimant under the alleged tax sale, and this by an invasion which amounts to an actual, adverse possession, and which to bar the owner must be maintained continuously for the prescribed period of two years.

The tax sales being invalid, the constructive possession of the lands remained with the appellant, the true owner, until the survey of October, 1940, and conceding, but not deciding, that the survey was sufficient to amount to an intrusion upon, or an invasion of, the possession of appellant, it was, as stated, within two years of the filing of appellant's cross bill, wherefore it becomes immaterial as to what happened on the lands after the survey.

Reversed and remanded.