46 So. 952 | Miss. | 1908
delivered the opinion of the court.
The facts in this case are as follows: Samuel IIyman, one of the appellees, a citizen of New Orleans, La., filed his bill of complaint against appellants some time in the fall of 1905, in the chancery court of Sunflower county, Miss., to cancel certain patents issued by the state of Mississippi to appellants to section 25, township 19, range 3 W., Sunflower county, for what is known as “swamp and overflowed lands,” alleging that he was the real and true owner of said section. The bill was not
On the hearing the complainants deraigned their title by beginning with the tax sale to the levee treasurer of Sunflower-county, in 1859, for the levee taxes of ithe year 1858, and further introduced a series of tax titles, state and levee, and finally through Gwin and Hemingway, ex officio liquidating levee commissioners, to Gordon, and from Gordon, through a series of conveyances, to the Delta & Pine Land Company, and a deed from the state of Mississippi to the Delta & Pine Land Company, under- the “quieting act” of 1888, and then a series of' conveyances to the Sutherland-Innes Company, and from the Sutherland-Innes Company to Samuel Hyman, complainant. After all the testimony for the complainants was introduced,, appellants moved to exclude all of the testimony of complainants, because the testimony failed to show any title to the land' in controversy, as the same had never been liable for tax sale, and as the title, if any, acquired by the Sutherland-Innes Company, had escheated to the state. This motion was overruled. Appellants then introduced, for their testimony, patents from the Hnited States to the state of Mississippi to the land in controversy as “swamp and overflowed lands,” and then patents-from the state of Mississippi to appellants, and also the deposition of Samuel Hyman, which had been taken on interrogatorseswhich had been-filed under section 1938 of the Code of 1906. Appellants also introduced a certified copy of the bond of J. E. Johnson, levee tax collector of Sunflower county, showing that" he had not given the bond required by law, and that any sale, in consequence, by him, on account of his failure to give the-proper bond, was void. The chancellor found for the complain
First. It was error in the court below to permit Hyman to-amend his bill, after the answer had been sworn to and filed,, and the cause set down for hearing at the December term, 1906, by adding the words, “answer under oath being hereby expressly waived,” at the close of the first paragraph of the prayer of the bill. The answer having been sworn to and filed, and the cause set down for hearing, it was then too late for such an-amendment to have been permitted. In Fletcher’s Equity & Equity Pleading, section 648, it is said: “Under a statute-permitting the complainant to waive answer under oath, it has-been held that he must waive an answer under oath to every part of the bill or to no part of it; and, after the defendant has-put in an answer, the complainant cannot, by amendment waiving answer under oath, get r:id of the consequences of a denial-under oath of the matters of the bill. If the bill requires an. answer under oath, and after the coming in of a sworn answer’, the complainant dismisses his bill, such sworn answer, filed in-the prior suit, will remain evidence, and the complainant can have no decree under his Second bill, unless his sworn answer is-overcome by other proof.” And so, in 1 Ency. of Pl. & Prac.,. in the notes on page 470, it is said: “After a bill seeking a discovery has been answered, the complainant cannot amend his-bill so as to waive discovery, and thus get clear of the defendant’s answer” — citing Allen v. Woodson, 50 Ga. 53. See, also, Burras v. Looker, 4 Paige (N. Y.) 227. No testimony whatever had been taken in this case by Hyman when this cause war set down for hearing. Under these circumstances, the answer was evidence under our statute, and entitled to full weight as such, and could not be destroyed at that time as evidence by the amendment indicated.
Second. We do not think it was error in the court below to-
Third. We come now to the chief ground upon which appellees rely, which is that this case was necessarily decided for them under the case of Means v. Haley, 86 Miss. 559, 38 South. 506. Appellees say that there was a demurrer filed to the bill originally in the court below, and an appeal taken to this court, and that decree, overruling the demurrer in the court below, affirmed, on the authority of Means v. Haley, and hence that that decision of this court, affirming the action of the court below in overruling said demurrer, is the law of this case, and that the question is thus res adjudicaba. This is an entire misconception. There is no room for the doctrine of res adjudicaba in this case. The original bill in this case was filed by one Samuel Ilyman, in which he alleged himself to be the true and legal owner of the land in controversy. The demurrer, which was interposed at the December term, 1905, of the court below, was a demurrer to that particular bill so filed by Hyman, and it was on an appeal from a decree overruling that particular demurrer to that particular bill, in which Hyman alone was the complainant, that the decree of the court below was affirmed, and affirmed, too it may be said in passing, without argument Or brief on the part of the present appellants. After all that had happened, it-appeared from interrogatories thereafter propounded to Hyman that his allegation was untrue — that he was not the legal owner of the land, and that he had no interest whatever in the land, either legal or equitable, but that the Sutherland-Innes Company claimed this land, as hereinbefore set out, and that ho (Hyman) was a mere dummy or figurehead, acting for them, doubtless because of their knowledge of the penalty provided by section 2768 of the Code of 1906; and it was after all this testimony had been taken that the Sutherland-Innes Company, for the first time, at the May term, 1907, became a party complainant to this bill. It therefore appears that the demurrer which
But learned counsel for appellees also misconceive the case of Means v. Haley, 86 Miss. 557, 38 South. 506. Nothing whatever was decided, so far as the decision is concerned, in Means v. Haley, except that where there had been sales of lands to the levee board, which lands were the subject of sale for taxes, no irregularities or defects in such sales, save constitutional defects, should avail after the passage of the act of 1888 (Laws 1888, p. 40. c. 23) to defeat tlie title to lands so held under such sales to said levee boards. This is shown by a careful reading of tlie opinion at page 562 of 86 Miss., and page 507 of 38 South., giving the history of the act. It is said there that “the legislature was not only 'aware of the inability of many purchasers to make proof of title in the liquidating levee board, but it recognized that many of the sales by which said board acquired its claim of title were voidable, if not absolutely void, and remedied that by enacting that all such sales (except as to certain occupants and claimants under the abatement act) theretofore made were valid, notwithstanding any defect or irregularity in the same, and shall not be impeached for any cause, except that the tax for which said land was sold had been paid.’ ” There could be no tax to be paid of any kind whatever on lands not the subject of any taxation at all. It may be conceded, and is doubtless true, that the language of the opinion, especially on page 563 of 86 Miss., and page 507 of 38 South., is entirely too
But the lands in this case were swamp and overflowed lands, vested in the state of Mississippi, and, of course, never were the subject of taxation. No taxes of any hind whatever were ever due upon the lands, in this case, and this case is controlled squarely by the two decisions of this court, recently announced and now reaffirmed, of Howell v. Miller, 88 Miss. 655, 42 South. 129, and Edwards v. Butler, 89 Miss. 179, 42 South. 381. In the former of these cases, Calhoon, J., speaking for the court, said, in a case involving just this very cláss of lands, swamp and overflowed lands, at page 667 of 88 Miss., and page 130 of 42 South.: “The swamp and overflowed lands were never the subject of taxation and sale for nonpayment. Not being subject to any tax, any assessment and sale of them had no warrant in law, and the purchaser acquired no right against the state or the state’s vendee, who bought with the warrant of the law for their especial sale.” In Edwards v. Butler, 89 Miss. 179, 42 South 381, Chickasaw school lands were involved, •granted to the state of Mississippi by the national government. We there said: “It is perfectly manifest that they were never subject to taxation, that there never existed any power anywhere to sell them for taxes, and hence all the tax titles set up in this record are absolutely null and void. These lands are held in trust by the state of Mississippi for the education of the children of the townships in which these sixteenth sections lie. They were never taxable, and hence any effort to subject them to taxation is void. The act of 1888, iAu act to quiet and settle the title to certain lands in the Yazoo Delta which were sold by the commissioners of the chancery court of Hinds county,’ etc. (Laws 1888, p. 40, c. 23), as a matter of
It must be too obvious for any further comment that if tho act of 1888 were construed as appellees insist it should be construed, and as they say it was construed in Means v. Haley, two things are perfectly plain: That such act would be unconstitutional, as said in Edwards v. Butler; and, second, that the case of Means v. Haley has already been overruled by both Howell v. Miller and Edwards v. Bulter, supra. The title of appellants to the land in controversy is perfect, and the contention set up by the appellees cannot be maintained. Means v. Haley had no such purpose, and, if it had, it, as said, has been overruled already by the two cases named. This cuts up the appellees’ case by the roots; but there are several other things which may be said to’ show that, upon other grounds, the result would be the same.
Fourth. The appellees say in the third paragraph of their brief that they claim that they derive their title from W. W. Stone, auditor, and that this deed is made under the provisions of the second section of the act of 1888. They further say that at -the time of the execution of this deed the title to this land
In order to meet this predicament, in which appellees have placed themselves, by their own evidence, appellees say that if all this was true, and if it was further true that there was no proper confirmation of the sale from Stewart, receiver, and McKee, commissioner, they yet acquired the title of Evers by reason of the conveyance made to Evers, as shown by paragraph 14 of their bill, in which deed Evers and others on November 13, 1886, made a quitclaim deed to the Delta & Pine Land Company of this and other land. In other words, appellees would claim, according to paragraph 14 of their bill, under this quitclaim deed from Evers, made on the 13th of November, 1880, when they have themselves shown, in paragraphs 8, 9, 10, and 11 of their bill, that the land had previously been sold twice for taxes to the state — once on March 8, 1883, for the taxes of 1882, and that title had been sold by the state to Stewart, receiver, and that afterwards, on the first Monday of March, 1886, the land was again sold for taxes to the state without authority, since no taxes were due for the year 1885, the land having been previously sold on March 13, 1885, to Stewart, receiver. Even if the sale in 1883 was valid, manifestly, Stewart had that title, and Evers had no title to convey on the 11th of March, 1886, after the land had been sold for taxes in 1883 to the state, and conveyed in 1885 by the state to Stewart, receiver, so that in a wholly different view of this case it is clear that independently of the quieting act of 1888, and independently of Means v. Haley, if it had meant, as it does not, what the learned counsel for appellees contend, appellees had no way by which to acquire this title, except through a conveyance from Stewart, receiver, to some 6ne through whom appellees claim. Paragraph 12 of said bill shows that Jas. D. Stewart, receiver, and James McKee, special commissioner, conveyed section 25 to Watson on the
Sixth. We conclude by referring merely, since what we have said disposes of the case, to the fact, made clear by the record, that every alleged sale to the levee board in this case was absolutely null and void. For example, the first deed from Eli Waits, tax collector, to Eield, levee treasurer, was void, under Vassar v. George, 47 Miss. 730, because the deed was never filed for redemption; and the next deed from Eli Waits to Eield, levee treasurer, was void for the same objection, and also for the further reason that it had no seal, as required at that time. See Gibbs v. McGuire, 70 Miss. 646, 12 South. 829. The next deed, from J. E. Johnson, sheriff, to the liquidating levee commissioners was void under Vassar v. George, 47 Miss. 729, because no proper bonds, as required by the statute, had been made. But his opinion is already too protracted. We merely referred to the fact that all these sales were null and void in passing.
The decree of the court below is reversed and the bill dismissed. Reversed and dismissed.