McLemore v. Anderson

43 So. 878, 92 Miss. 42

Opinion

Whitfield, O. L,

delivered the opinion of the court.*

The case made by the record is as follows: On June 17, 1898, Peter Anderson filed his bill in the chancery court of Quitman county, showing that the land in controversy was sold to the state for taxes on July 4,1867, and that, there having been no purchase or redemption from that sale, it was again sold for taxes on May 10, 1875, under the abatement act of 1875 (Laws 1875, p. 11, c. 2), and that by mesne conveyances he had acquired said tax titles, and praying for a confirmation of his said tax title. On January 16, 1899, the defendants McLemore filed their answers to said bill, and on the same day J. W. Robertson filed his answer, adopting the answers of the McLemores. On January 17, 1900, the defendants filed an amendment to their answer, and prayed that their answer and the amendment thereto bo taken as a moss-bill, and that a decree be rendered declaring the deeds set out in complainant’s bill void, and cancelling the same as a cloud on their title, and for writ of possession for the lands, and for general relief. No process was issued upon this cross-bill, nor any notice thereof given until November 17, 1902. On that day the defendants, by their attorneys, gave notice in writing to the solicitor for the complainant, that the defendants had, by their solicitors, filed a cross-bill in the cause. This notice was dated November 17, 1902, and was served on that day. On November 18, 1902, the complainant dismissed his bill without prejudice. On November 21, 1902, Peter Ander son, the cross-defendant, filed his answer to the cross-bill. On June 11, 1903, the cross-complainants filed a paper purporting to be an amendment of and an addition to their answer and cross-bill, and praying, among other things, that Alex. Lindsay, Isham Nolan, D. F. Rogers, and D. M. Russell be-made parties defendant “to this bill, and be summoned by proper process to appear and answer, plead, or demur to the same,” etc. On April 19, 1904, the cause was heard by the chancery court, and a final decree was rendered by its dismissing the cross-bill.

The land in controversy was patented to the state of Mississippi under the act of Congress known as the “Swamp' Land Act,” approved September 28, 1850 (9 Stat. 519, ch. 84) ; and on November 12, 1852, John I). McLemore located on the land scrip distributed to Coahoma county, pursuant to chapter 16, p. 41, Laws of 1852, the same being an act entitled “An act to provide for the construction of a levee upon the Mississippi river, for the reclamation of the state and school lands, and for other purposes,” approved March 15, 1852; and on May 30, 1853, pursuant to said location, a patent was duly issued to John D. McLemore for the same land. Upon the formation of Quit-man county on February 1, 1877, the land became a part thereof. Prior to that time it was a part of Tunica county.

To maintain their suit the cross-complainants introduced in evidence a deed from Gibbs & Hemingway, liquidating levee commissioners, to S. M. and J. H. McLemore; a certified copy of a tax deed, dated May 18, 1869, executed by the sheriff of Tunica county to the liquidating levee board; a certificate by the state land commissioner, showing that the land was patented to the state under the “Swamp.Land Act”; and an agreement of counsel, the fourth, fifth, sixth, seventh, tenth, eleventh, and thirteenth paragraphs of which are as follows: . “(4) That the said patent issued to J. D. McLemore on November 12, 1852, was legal and valid in all respects, and passed a fee-simple title to the land in controversy, unless it be that it was illegal to locate said land with scrip distributed to the president of the board of police of Coahoma county; the land being at that time a part of Tunica county. (5) That the cross-complainants are the children 'and only heirs at law of the said L D. McLemore. (6) That by conveyance bearing date April 13, 1888, the state . of Mississippi, by the then Auditor of Public Accounts, executed a conveyance purporting to convey said land to James M. Edwards, W. A. Williams, and K,. L. Goyer. (7) That at and before the filing of the original bill in this cause, to wit, on the 1st day of October, 1894, Peter Anderson, the complainant in the original bill and defendant in the cross-bill, acquired by mesne conveyances such title as was vested in the said James M. Edwards, W. A. Williams, and K. L. Goyer under said conveyance dated April 13, 1888. . . . (10) That by deed bearing date December 2, 1898, Peter Anderson conveyed to Alex Lindsay the west one-half of the land in controversy, and that afterwards> to wit, on the — day of December, 1898, the said Alex Lindsay entered into the actual possession and occupation of said land under his deed, and built a residence thereon, and inclosed not less than ten acres thereof, and made a crop of cotton and corn thereon during the year 1899, and that ever since he built said residence on said west one-half of said land he has continuously resided thereon, cultivating each year never less than ten acres thereof in cotton and corn, and claiming the same as his property in fee simple, openly, notoriously, and adversely to all the world, except as to the unpaid purchase money from the said Alex Lindsay to the said Pieter Anderson, as set out in said answer to said cross-bill. That at no time since he'inclosed ten acres of said land in December, 1898, has the said Alex Lindsay had less than ten acres, of said west half of land inclosed.” The first part of paragraph 11 of said agreement is word for word the same as paragraph 10, except that the name of Isham Nolan is substituted for that of Alex Lindsay, and the east half of said land in controversy is substituted for the west half of said land, and said paragraph 11 closes with these words: “That before either the said Alex Lindsay or the said Isham Nolan ’entered on said land the attorney of the complainants warned them that the1 complainants were in possession of tbe land and that they must keep off of it” Paragraph 13 reads: “That tbe answer of Peter Anderson, filed November 21, 1902, to tbe cross-bill, be taken as bis answer, and also as tbe joint and separate answer-of Isbam Nolan and Alex Lindsay, J. F.-Rogers, and D. M. Russell to tbe cross-bill filed June 11, 1903.”

Tbe cross-defendants introduced in evidence a certified copy of a deed from tbe tax collector to tbe state of Mississippi, dated July 4, 1867; a certified copy of a copy of tbe list of lands sold to tbe state of Mississippi May 10, 1875. Tbe deed and sales list last mentioned were objected to by the cross-defendants, but tbe ground of tbe objection was not stated. A final decree was entered April 19, 1904, dismissing tbe cross-bill, and the cross-complainants have appealed. Tbe appellees rely on an alleged sale made July 4, 1867, to the state, and an alleged sale-on May 10, 1875, under tbe abatement act of 1875, under which two sales appellees claim tbe state bad title, and that, tbe state so having a valid title, appellees acquired that title by a deed from tbe auditor of tbe state of date April 13, 1888.

First, as to tbe alleged sale to tbe state in 1867, that sale was made on July 4, 1867. July 4, 1867, fell'on Thursday. Under tbe statute then in force, tax sales bad to be made on tbe first Monday in July. Laws 1863, p. Ill, cb. 7; Hardie v. Chrisman, 60 Miss., 671. There is absolutely no evidence whatever in this record to show that tbe sales were adjourned from day to day from July 1st, the first Monday of July, 1867, until July 4th. Nor is there any agreement in tbe record to-that effect. That sale was, therefore, made on tbe wrong day,, and was absolutely void. Mead v. Day, 54 Miss., 58; McGehee v. Martin, 53 Miss., 519; Harkreader v. Clayton, 56 Miss., 383, 31 Am. Rep., 369; Meyer v. Peebles, 58 Miss., 628; Byrd v. McDonald (Miss.), 28 South., 847.

But,'secondly, as to this alleged sale of July 4, 1867, which- it is insisted was made valid by the act of 1860 and by Codo 1871, § 1709, tbe only possible method of holding that sale valid, since it was made upon the wrong’ day, would be by invoking, as is done, the statutes of limitation involved in the act of 1860 (Laws 1859-60, p. 213, c. 154) and Code 1871, § 1709. But the appellees never acquired any title from the state, as shown, until the 13th day of April, 1888. Prior to that time, on March 2, 1888, the legislature passed the well-known act of 1888 (Laws 1888, p. 42), by section 5 of which the legislature expressly validated all sales made by the liquidating levee board, except as against certain persons who had paid all taxes and were at the passage of the act in adverse possession of the land affected by such sales. It is not pretended that the appellees belong to that class, and it is perfectly manifest that the act of 1888 not only made the deed of the commissioners, Gwin and Hemingway, prima facie evidence of a valid sale to the liquidating levee board, as provided in section 1 of said act; but, as stated, it also validated, except against constitutional defects, all sales made to the liquidating levee board, except as stated.' Suppose it should be granted, therefore, that the state actually had title under the sale of July 4, 1867, made valid by the statute of limitations involving the act of 1860 and Code 1871, § 1709; was it not perfectly competent for the state to waive the effect of these statutes of limitation, which alone had given any validity, if it had any, to the sale of July 4, 1867, by this provision in section 5 of the act of 1888 ? Was it not perfectly competent for the state by section 5 of that act of 1888 to provide, as it did, that all deeds made to the liquidating levee board should be valid, save as against constitutional defects, except upon making the showing, provided in that section, that the taxes had been paid, etc ? Or, to put it more logically and accurately, since the state never got any title by virtue of the tax sale of July 4, 1867, that sale having been void because made on the wrong day, and in truth being fully protected from suit to recover such lands by virtue of mere statutes of limitation, the act of 1860 and Code 1871, § 1709, could it not, by section 5 of tbe act of 1888, waive these mere statutes of limitation, which alone protected its void title from assault? One who claimed adversely to the state’s alleged title acquired on July 4, 1867, was not confronted by any title acquired at that sale, valid in itself; for it was absolutely void, as having been made on the wrong day. He was confronted merely with his inability to sue and show such voidness of the state’s alleged title by these two statutes of limitation. Can there be any doubt -that the state could waive these statutes pf limitation, and that it did waive them; that it did divest itself of any protection arising-out of these statutes of limitation, by section 5 of the act of' 1888, in the case, at least, of one who bought the state’s title-after the passage of said act of March 2, 1888 ?

We think it is clear, on the facts of this case, having regard to the date of the alleged purchase from the state, April 13, 1888, and having regard to the date of the act of March 2,, 1888, that these appellees cannot invoke, for their protection, these statutes of limitation, which the state had waived beforeappellees acquired title by said section 5 of the act of 1888. Since, therefore, all that appellees ever had, furnishing them any semblance of title derived under the sale of July 4, 1867,., was the protection of these two statutes, and since the state waived those statutes and the appellants purchased in 1878 from the commissioners the title of the liquidating levee board, which title had been acquired May 18, 1869, the tax deed showing the sale was adjourned from day to day till the 18th, and since that title of the liquidating levee board so acquired May 18, 1869, is assailed only on the ground that it was void because the state had the title at the time of the sale, it is manifest that the appellants acquired a good title by their conveyances set out in the record, and that appellees are in no position to set up the act of 1860, or Code 1871, § 1709, having bought, what title they had after these statutes had been waived by the state by section 5 of said act of 1888. It is clear, therefore, first, that the state got no title by the sale of July 4, 1867; and, second, that, if it had, it got it only by virtue of these two statutes, which it waived in favor of appellants and before appellees purchased from the auditor on April 13, 1888. It is to be •especially noted that the deed of May 18, 1869, recites adjournment of the sale from day to day till 18th, unlike the deed in Meyer v. Peebles, 58 Miss., 634, and that the sale of May 18th to the levee board, being valid so far as this record shows, no sale could have been made to the state May 10, 1870. Meyer v. Peebles, supra, and Bunch v. Wolverstein, 62 Miss., 56.

But, as to the alleged sale of May 10, 1875, if the sale alleged to have occurred on May 10, 1875, is sufficiently shown by the certified copy, a copy of the list of lands sold to the state May 10, 1875, as to which we say nothing now, it does not appear that the auditor’s deed was based on such sale. The auditor’s ■deed recites a sale in 1879. There is no sales list showing that the land was1 struck off to the state in 1879; nor is there any proof made that the land had not become subject to taxation and sale for delinquency in 1879. There is no agreement that the recital in the auditor’s deed is a mistake, nor is there a " scintilla of evidence offered to show that it was a mistake. It may be true, as said by learned counsel for appellees, that the ■cases of French v. McAndrew, 61 Miss., 187, and Bower v. Chess, 83 Miss., 218, 35 South., 444, deal with tax collectors’ deeds and not with the deed of the auditor, and that the principle of those cases may not be, in its whole extent, applicable to an auditor’s deed; but that does not meet the difficulty, on this record, that there is neither an agreement, nor evidence •showing, in any way, that the recital in the auditor’s deed was •a mistake. We must, perforce, therefore, on the face of this record, accept the statement in the auditor’s deed as true that the sale was made in 1879 on which the auditor’s deed was based. As there is no sales list showing that the land was struck off to the state in 1879, nor any evidence that the land had not become subject to taxation and sale for delinquency in 1879, the auditor’s deed conveyed no title derived under the only sale ■ of which it is predicated, to-wit, a sale in 1879. It is true, also, as urged by learned counsel for appellees, that, if it has once been shown that the state actually has title under any sale for taxes, the auditor’s deed will convey the same to a purchaser, although there be a misrecital therein as to the real date of the sale to the state. See Caruthers v. McLaren, 56 Miss., 378. But it never has been held by this court that, when an auditor’s deed recites a sale for taxes at one time, the mere proof of an earlier sale will establish the fact that the date named in the deed is a misrecital, and the cases of Gamble v. Witty, 55 Miss., 27, and Caruthers v. McLaren, 56 Miss., 378, are not, on their facts, cases which support the contention of learned counsel for appellees that the statement made in the auditor’s deed that the sale was made in 1879 is a misrecital. Not being able, therefore, on this record to treat is as a misrecital so far as the auditor’s deed is concerned, its own statement is that it is predicated of a sale, to wit, a sale in 1879, when there is no evidence in the record to show any such sale ever made to the state for taxes.

But there is another fatal objection to the view of the counsel for appellees on the record as presented to us. If it were considered, about which we now express no opinion, that the absence from the auditor’s office of the original sales list of lands sold under the abatement act did not invalidate that alleged sale, as showing want of power in the auditor to sell in the absence of such original sales list, it nevertheless clearly appears that the auditor’s deed in this case, whether it be the original deed or a certified copy, did not contain the essential indorsements required specificially and expressly by Code 1880, § 562. The failure of such deed to show these indorsements, by the express terms of the statute, made the auditor’s deed absolutely void. This error is so fundamental, resuling directly from the express and positive provision of the statute law, that we do not think the failure to object to it in the court. below material, and. the objection can be made here for the first time. The objection is not one which goes to mere irregularity. It is one which cuts up by the roots the foundation of appellees* title, as being made absolutely null and void by the Statute law. This court has no power to render nugatory any positive declaration of the statute (Code 1880, § 562) that a deed like this shall be absolutely void. A failure to object cannot repeal the positive statute law, declaring it void. But, worse than all for appellees, since the deed of May 18, 1869, shows on this record good title in appellants, no sale could have been made to the state May 10, 1875. It results necessarily from the views which we have indicated that the decree is erroneous.

We will, however, add that we are of the opinion that the three-year limitation of Code 1880, § 539, invoked, cannot apply on the facts of this record to protect the possession of Lind-, say or Nolan, since they were purchasers .pendente Me. The suit was begun by their grantor, Anderson, on June 17, 1898. They purchased December 2, 1898. Anderson continued to prosecute the suit long after the first cross-bill was filed, and until more than three years after their adverse possession began. The cross-bill was filed January 17, 1900. Anderson dismissed •his bill November 18, 1902. As Lindsay and Nolan purchased pendente Me, they should be held, on true equitable principles, to have been affected by everything that appeared in, and might have been done in, the proceeding of their grantor, whose bill set up the adverse claim of the present cross-complainants, and alleged possession in their tenant. True, Nolan and Lindsay were afterwards formally brought into the casé; but were they not already there in contemplation of law ? The very title under which they claim is assailed in a suit'brought to quiet title, which suit was pending when they bought, and such assault yas begun in less than two years from that purchase. To allow Anderson to set up- for his vendees the three-year limitation of the Code of 1880 under such circumstances would be in the highest degree inequitable.

The decree is reversed, and the canse remanded for a decree in accordance with this opinion.

Reversed and remanded.

Subsequent proceedings.

After the delivery of the foregoing opinion proceedings were had as stated in the following, the final opinion delivered in the case.

Whitfield, C. J.,

delivered the opinion of the court.

This case was heard and decided at a preceding term of this court. Afterwards a suggestion of error was filed in respect to that part of the opinion touching the location of the land scrip involved in the case. This suggestion of error, after due consideration, was sustained, and that part of the opinion eliminated. Later another suggestion of error, general in its nature, was filed. This suggestion of error was being considered when it was ascertained that the original judgment in the ease had been rendered 'in this court when one of the parties was dead, which fact, it seems, came to the knowledge of counsel on both sides after the rendition of the judgment. Thereupon the. former original judgment of the court was vacated, and the cause remanded to the docket for consideration anew.

The court, as at present constituted, have given the most careful consideration to all the briefs in the cause, including the suggestion of error and the reply, and we are of the opinion that the original judgment entered in this case (43 South., 878) is manifesttly correct on this record.

Footnotes

*

This case was decided May 20, 1907, but for the reasons stated in the opinion rendered December 21, 1908, post, 65, its reporting was postponed.