46 Miss. 581 | Miss. | 1872
The land in dispute is parcel of the five hundred thousand acres, granted to this state, by the act of congress of September, 1850, for purposes of internal improvement. The respective parties claim under conflicting patents; one issued to Joshua Green, in 1853, and the other to Calvin Clements, in 1869.
The patent to Clements was issued under the act of 16th March, 1862, by which, among other things, the secretary of state was authorized to issue scrip for swamp lands in the different counties in which they lie to commissioners appointed for that purpose. Clements became regularly the holder of a piece of the scrip, which was located upon the quarter section sued for, and in redemption of which his patent was granted.
The patent to Green was issued under the statute of 15th March, 1852, which directed the secretary of state to issue on and before the third Monday in July of that year, to the presidents of the boards of police of the counties of De Soto, Tunica, Coahoma, Bolivar, Washington, and Issaquena, six hundred thousand acres of land scrip. Joshua Green became the owner of “Tunica County Scrip,” which was located on the same land, for which a patent issued to him.
The laws of the 15th and 16th of March, 1852, under which these grants were made, were construed in the case of Jackson v. Dilworth, 37 Miss. 773. The act of the 15th of March, under which Green made his location, was held to confine the purchasers of the scrip to a location upon lands in the counties therein designated. In effect the act granted six hundred thousand acres, in the counties bordering on the Mississippi river, for the purpose of
But it is insisted, for the defendants, that, although their title may have been invalid in its inception in Green, their vendor, yet, entering under their deed from him, their possession was under color of right, and they are therefore entitled to the bar, tolling the plaintiif’s right of entry. The maxim of the common law, '■’■nullum tempus occur rib regi,” has been incorporated into our jurisprudence. In England, when an act of parliament is made for the advancement of justice, to prevent injury and injustice, the king shall be bound, though not specifically named therein. But where the statute is general, and any prerogative right, title or interest is taken from the king, then he shall not be bound, unless by express words the statute is made to include him. Bacon’s Abr., 559, Prerogative. The old authors say that the king shall not be a sufferer by the negligence, the contracts, or the combinations of his officers. Therefore, he is
' This presents the question, whether the lands, of which the tract nr controversy is parcel, were the property in fee of the county of Attala, by grant from the state, or whether the state was the proprietor. To determine that question, the entire legislation on the subject, its policy and reason, as well as the text must be looked to. It is familiar learning that general words, in a statute, may be limited by other, restrictive ones, or by other provisions making it impossible or inconsistent to give to the general words their ordinary signification. The entire statute must be so read, as that the whole may have a harmonious and consistent operation. ■ 1
The title Of the act under which the plaintiff derived his patent is declaratory of its policy, “The reclamation .of the swamps and overflowed lands, and for the improvement of the navigation of the various rivers and streams of
It is manifest from this brief synopsis of the statute, that the general words in the first section did not impart a grant of the fee to the several counties. The title was retained by the state. The commissioners appointed by the county authorities, under the second section, were the agents to make sale of the scrip, to receive the money, and, upon producing evidence of a purchase and location to the secretary of state, the patent emanated, which divested the state of the title. The grant then to the counties was not the land itself but the money arising from the sales, to be expended by them in the reclamation of submerged lands, and the improvement of the navigation of the streams.
As the statutes of limitation do not run against the state, adverse possession, however open and notorious the occupancy, confers no benefit either to toll the right of entry or confer a title. A notable instance is presented in Jackson v. Vail, 7 Wend. 125. In 1820 a patent was granted by the legislature of New York to a revolutionary officer, to take effect as if it had issued in 1790. A possession under claim
It follows, therefore, that the occupancy of the locus in quo by the defendants, from 1855 to November, 1857, does not avail them under their plea. Computing from the latter period to the date of instituting this suit, and deducting the suspension during the war, the law did not attach.
But it is said that Green’s patent, being on its face older than Clement’s, must prevail in a court of law, until set aside by direct proceedings in chancery, or upon quo warranto. If the patent may be vitiated for matter de Jiors, to be averred and proved, chancery is the proper forum for the litigation. But if that appears on its face which makes it invalid and inoperative, then the fact is as if “found,” and it is a question of law as to its validity. If the patent is “void” and that which renders it so is written on its face, it is quite as competent for a court of law as for a court of equity so to pronounce, as if the land
But it is further objected that, inasmuch as the state accepted Green’s money, it is estopped from denying his title and making a subsequent grant. It may be responded that the lands of which the locus in quo is part, were created a fund for certain purposes, to be administered by the counties by a sale of the scrip and use of the money for certain purposes. The'money never went into the treasury for ordinary state purposes, nor was it subject to the appropriation or control of the state. Moreover, this point was necessarily involved in Jackson v. Dilworth, and is concluded by the judgment in that case. There, the patentee had paid his money to the commissioners of Tunica county,, for the scrip, and had. made a location in Attala, for which a patent emanated, yet his patent was declared void
These views made it unnecessary to consider the objections to the evidence offered or the instructions granted and refused.
Judgment reversed and a venire facias awarded.