Chamberlain v. Board Supervisors Lawrence County

71 Miss. 949 | Miss. | 1894

Cooper, J.,

delivered the opinion of the court.

The recovery sought in this case is of money which, if collected, would “constitute a part of a school-fund, to be applied for the support of schools ” in the county of Lawrence; ■and, by § 744, code 1880, authority was conferred upon boards ■of supervisors to sue in such cases.

Under the act of congress, the land to be -selected was to be in lieu of the sixteenth section in Lawrence county “ sold •and patented to Will Whitehead,” and it is affirmatively shown by the record that the land patented to Will Whitehead was in township 7 of range 11 east, in Lawrence county. The reservation of the land is sufficiently shown by the records, and, under the act by which it was authorized, its beu■eficial iuterest inured to those who, but for the sale, would liave received the section patented to Will Whitehead — viz., the inhabitants of township 7, range 11 east, in Lawrence county. The fact that, in the formation of new counties, the territory in which the land lies has been excised from Lawrence county and is now a part of Lincoln county, has no influence upon the right of the beneficiaries to the enjoyment of property rights in the land, or upon the power of the board of supervisors of Lawrence county to maintain this suit. The bringing of a suit is not the exercise of a political power.

The demurrers to the seventh and tenth pleas were properly sustained. The title and possession of the land, if it has never been lawfully leased by public authority, remains in the United States, which cannot be disseized.

The demurrers to the third, sixth, and ninth pleas should have been overruled. The plaintiff' is subject to the bar of the statute of limitations. Money v. Miller, 13 Smed. & M., 531; Brown v. Supervisors, 54 Miss., 230.

Except as to the sale of May, 1875, it was error to exclude the evidence offered, by the defendant to show that the land had been sold for taxes and that he claimed under the tax-sales. The tax-collector’s conveyance to individuals, and list of lands sold to the state, are declared to be prima fade evidence that the assessment and sale, and all proceedings of sale, were valid. Code 1871, § 1700; Code 1892, § 1806. Since no valid sale of the land could have been made unless, it had been previously leased by the authority of law, the tax-deed and list of land sold to the state must be held to establish prima fade the fact that such lease had been made; otherwise, no effect would be given to the statute.

The evidence offered by the defendant to establish a sale of a portion of the land on the second Monday of May, 1875, under the act of Mai’ch 1, 1875, known as the abatement act, was properly excluded. The defendant did not’ propose to prove that the lands then sold were delinquent for taxes of a year prior to the year 1874, and it was only lands of that class which were subject to sale under the act of March 1, 1875. Gamble v. Witty, 55 Miss., 26; Prophet v. Lundy, 63 Ib., 603; Chambers v. Myrick, 61 Ib., 459; Dingey v. Paxton, 60 Ib., 1038. It devolves upon one claiming under a sale made under that statute to prove by independent evidence that the land belonged to the class to which the-statute applied. Dingey v. Paxton and Chambers v. Myrick, supra.

The judgment is reversed and cause remanded.