Warren County v. Lamkin

46 So. 497, 93 Miss. 123

• Court: Mississippi Supreme Court
• Decided: March 15, 1908
• Status: Published

Opinion

Calhoon, J.,

delivered the opinion of the court.

This case involves the question of whether a statute of limitations applies against a county arising out of the adverse possession of land. We are indebted to counsel on both sides for the very able presentation of their respective contentions, as made orally and by briefs. So lucid and strong and researchful have they been that, deciding either way, no reason or helpful authority is found by us which does not appear in their arguments. It is apparent on casual examination that, if between private persons, recovery in this case would be impossible. But the plaintiff being a county with some of the attributes of sovereignty a question presents itself here and, while there can be no criticism of the authorities in trying to recover what may be legally public property, still courts will be disposed, if they can, to apply the same rules that the law applies as between the humblest and most unpretentious private citizens. This is incumbent on us, and exceptions in favor of sovereignty in matters of property on the application of the statute of limitations must have, of course, strict construction as against the sovereignty. The doctrine, “Nullum tempus occurrit regi ” in its enlarged scope, is the invention and one of the instruments of despotism, and has no place in free countries, if it be attempted to go beyond the point of application strictly to holdings for the public user by the people, such as streets, parks, necessary grounds for courthouses, jails, public hospitals, etc.

The case before us is an action of ejectment by a county for a small piece of land. It is agreed that on January 14, 1840, the board of police of Warren county purchased (and, let it be noted, purchased at a judicial sale under execution) lot No. 249, square 44, in the city of Vicksburg, which lot includes that now in controversy; that on April 3, 1840, private parties executed a quitclaim deed to the board of police fpr the same property, and the board took possession of all of lot No. 249, and subsequently erected a county jail on the western part of it, and the jail has remained on it to this time; that on May 8, 1872, pursuant to a resolution of the board, there was executed to Geo. McCarthy a lease for ninety-nine years of a part of it fronting fifty-seven feet six inches on Grove street, and running back tire full depth of the lot; that on January 23, 1873, McCarthy leased a part of it, being thirty feet on Grove street, to C. H. Smith; that on November 17, 1877, the unexpired term of Smith’s lease was sold at public sale by a commissioner of the chancery court to the Vicksburg Benevolent Society for the consideration of $500, made up of $250 cash and a note for $250; that on August 6, 1907, the Vicksburg Benevolent Society, for $900 cash, conveyed all its interest to Mrs. Mildred Hunt Lam-kin, the appellee in this ease; that Mrs. Lamkin is now in possession of the property, claiming the right to it for the unexpired term of the lease by the board of supervisors as aforesaid; that from May 8, 1872, Geo. McCarthy and those deriving title through him, including Mrs. Lamkin, have been in the open, notorious possession of the said property, claiming to hold it during the whole term of the lease executed on that day to McCarthy ; that the property in controversy has never been school land; that there is no entry on the records of the board of supervisors showing that the $862.50, the consideration of the lease of May 8, 1872, to Geo. McCarthy, or the annual interest, has or has not been paid. The original lease to McCarthy, an exhibit in the case, was for fifty-seven feet six inches of lot No. 249, square 44, and purports to be for the consideration of $862.50, the legal interest on which was to be paid annually to the board, with the privilege to McCarthy to extinguish the debt at any time by paying the principal and amount of interest due, and this is a warranty conveyance by the board to McCarthy; and, as we have said, there is no showing of record whether any part of the principal or interest has ever been paid. A jury was waived, and the cause tried by agreement before the court, which found for the defendant and delivered the following able opinion:

Opinion of the Circuit Court.

“The agreed state of facts in this case sets forth that the county of Warren held the property involved in this suit as a part, of the lot purchased for a jail yard, that the said parcel of land was needed for such purpose, and that on May 8, 1872, in pursuance of a resolution duly adopted, executed a lease for ninety-nine years to one Geo. McCarthy. This property has passed through a succession of mesne conveyancers until it is at the present time owned by the defendant in the instant case. It is agreed that the possession of said property has, since May 8, 1872, the time of commencement of said term, been in said lessee and his several vendees up to the institution of this suit. The county now brings ejectment to recover this lot, and defendant interposes a plea of not guilty. This cause, with jury waived, is submitted to the court for trial and adjudication. There seems, at the time the lease was made, not to have been any authority in the board of supervisors to execute this lease, and that this instrument and the resolution authorizing it were void. But it appears that the lessee and those claiming under him have been in undisturbed possession, claiming under said lease, since May 8, 1872; and now the question arises as to whether the lapse of time and the continual possession aforesaid has not operated as a curative agency, and for the term of the lease has not vested an unassailable title in the holders under same.

“To solve this question, we are to consider whether the bar of the ten-year statute (Code 1871, § 2247; Code 1880, §§ 2664, 2668) apply to this lease. We think it does, and that to the exteaat of tlae tei'in the said lease is beyond attack, and that the lapse of so many years, to wit, nineteen years, when such statutes applied to counties, has silently, but surely cured the void lease, and that at this day it is beyond attack. Until the constitution of 1890 the various limitations prescribed by statute ran against counties. By section 2169, Code 1871, this was expressly provided, and when by Acts 1877, p. 82, c. 49, this section was amended, the legislature only went so far as. to save the rights of the state, and said act was sileiat as to counties, leaving this section in force as to them. The Code of 1880-is silent as to the operation of these statutes against counties, and we conclude that the common law was in force in this state on such matters. Our supreane court so decided, sayiaag that such limitations against counties were operative at common law. Clements v. Anderson, 46 Miss., 597. In the case of Brown v. Supervisors, 54 Miss., 230, the court held that the bar of the statute operated to prevent the county recovering school; land, when held under a void lease, and, so far as the term, perfected the title of the lessees. This doctrine was reaffirmed in Jones v. Madison County, 72 Miss., 807, 18 South., 87. We therefore conclude that the board of supervisors cannot now maintain its suit for this parcel of land.

“The next question for discussion is the matter of the consideration agreed to be paid. The agreement and lease attached ss Exhibit A to same does not fix any time of payment, but provides for annual interest on sanae. This consideration is not a rental, but a fixed purchase price, bearing interest. The records are sileiat as to whether this was paid, and, on account of lapse of time, no witness can now be found who has any knowledge of" same. It is a matter of public history that at the' time this, lease was made, and in the years following the records aaad all matters pertaining to the county affairs were very loosely kept, as tlae state was then emerging from the chaotic condition following- the war and reconstruction. It is to be presumed, inasmuch as the county has failed for thirty-five year’s to make any effort to collect this sum, that it must have been paid. The bar of the various limitations, in force until the constitution of 1890 (Code 1871, § 2151; Code 1880, § 2669), would prevent any effort at this late day on the part of the board to collect same. By its terms the consideration was a present obligation and could have been collected on demand. The provision for the payment of interest would‘not prevent prescription maturing. Therefore,.so far as the county is concerned, it can now have no right in court to enforce a collection of this consideration.

“The court finds for the defendant, and orders the proper judgment entered herein.”

It is proper to plead the statute of limitations. If the sovereign desires to avail of the prerogative, it must show that the property does not fall within the category which would avoid this statute. In the case at bar it devolved upon the county to show that it in fact bought the property for jail purposes and that the part sold was needed for that purpose. We find here by every rule of reason and common sense that it did not need this part, which was sold for jail purposes. Although it is true that it could not have bought property except for such public purposes as jails, courthouses, etc., still it did in fact buy it, and it. did in fact sell it, and it was, when it sold it, property in a condition to be potentially the subject of sale. The wholesome doctrine that, except in cases for public user, the statute of limitations did run against counties and cities, was done away with by the constitution of 1890. The convention in that case was reactionary, and went back to the old despotic doctrine, forgetting even the fact that in England sixty years would bar even the king. 3 Bl. Com., *307. Here we have it now imbedded in our written constitution that no time whatever shall bar the state or county or municipality. Wisely or unwisely, this is the fundamental law and must be observed. But it will be noted that the right to the property in this litigation, if the statute ran at all, was barred by the then existing law before the constitution of 1890 took effect. Brown v. Board, 54 Miss., 230, cited and approved in Madsion Co. v. Powell, 71 Miss., 618, 15 South., 109; Jones v. Madison Co., 72 Miss., 777, 18 South., 87; Chamberlain v. Laurence Co., 71 Miss., 949, 15 South., 40. The lease in the case of Brown v. Supervisors, 54 Miss., 230, was a void lease; but the court held that, notwithstanding it was void, the statute continued to run, because it constituted color of title.

If we assume that the whole lot was bought for jail purposes, it does not therefore absolutely follow that it all could be used for those purposes. On the contrary, it is manifest that the county had all it wanted for jail purposes, and that much of it was so occupied, and the remainder, in our judgment, was subject to be held adversely, so that title might be acquired by adverse possession for the proper time. In fact, the presumption that the whole of it was wanted for jail purposes is rebutted by the actual facts shown. It might have had to buy the whole of it in order to get the ground it actually wanted for the jail purposes, and no doubt this was the actual truth-; the purchase having been made of the entire property at auction at a judicial sale. In short, any alienable interest in land in our state under the law then existing was subject to divestiture by adverse possession, whatever may have been the machinery which had to be invoked to alien it. The fact that the county sold the lease of this property for ninety-nine years and conveyed it with warranty of title ought to be of great force in compelling the conclusion that it was not dedicated to public uses, so as to avoid the statute. By this doctrine of sovereignty, in its application to the rights of owners of land, many worthy and confiding families of poor people have been stripped of house and home and compelled to begin life anew. We reiterate that this must not be done, unless it is necessitated by the strictest construction of the law in favor of the occupant.

Affirmed,