43 F. 181 | U.S. Circuit Court for the District of Southern Mississippi | 1890
This cause is submitted upon bill, answers, exhibits, and proofs, and argument of the counsel. The pleadings and proofs are exceedingly voluminous, but, after having been carefully examined and considered, they show the following facts:
On tho 23d day of November, 1859, an act was passed by the legislature of this state “to incorporate the Memphis, Holly Springs & Mobile
The lands involved in this suit are those claimed to have been purchased from the original owners under the act of July 21, 1870, which authorized the purchase of lauds situate in any part of the slate of Mississippi, and under the provisions of the act of 16th of March, 1872, authorizing the sale by the auditor to the railroad company, at two cents por aere. The title to the other lands held by the company need not, therefore, be considered. Tt is admitted that the title to these lands was vested in the state of Mississippi by patents from the United States under what is known as the “Swamp-Land Act” of congress, and that the same have been entered under the act of the legislature of this state approved March 2, 1854, entitled “An act to provide for the further issue of swamp-land scrip, for the purpose of aiding in the completion of the levees upon the Mississippi river,” and that patents have been issued therefor to the eutorers thereof. The title-deeds, filed as evidence in the cause, show that the parties or their assignees have convoyed to the Selma, Marion & Memphis Railroad Company most of the lands described in the hill. The greater part of these conveyances hear date at different times during the year 1871. The deeds recite that the lands
Idle defendants claim title under various conveyances made by county sheriffs and tax collectors and the auditor of public accounts, and under the decree of the chancery court of Hinds county, and sale and conveyance made in pursuance thereto. The tacts upon which defendants rely to maintain their title, as shown by the proof, are briefly as follows: On December 2, 1858, a statute was passed by the legislature of this state for the construction of levees on the eastern bank of the Mississippi river,
The proof fails to show that anything was done by the said railroad company under the charter of 1859, or that the conditions therein prescribed were complied with. Therefore, the effect of the charter of 1867 was substantially to create a new corporation under a new name, with the rights, powers, and privileges of the charter of 1859, and the additional provision extending the time for commencing and completing the railroad. This corporation w'as confined to the state of Mississippi, but with the power to consolidate with other railroad corporations, as authorized in the act of incorporation of 1859, which was not exercised until the 15th of April, 1881. It is provided in section 19 of the act of 1859, and
The next question for consideration is as to the legal effect of the sale of these lands under the decree of the circuit court of the United States for the western district of Tennessee, and the foreclosure of the right, title, and interest of the Selma, Marion & Memphis Railroad Company in them. The-only question is as to the jurisdiction of the court to make the decree for the sale, for the reason that the lands are situate within this state, and not in the district of West Tennessee, or within that state. The court had jurisdiction of the parties and of the debts secured by the mortgage or trust-deed. If the court liad jurisdiction, then the sale, its confirmation, and the payment of the purchase money vested a complete, equitable title to the lands in the purchaser; and the court, if the legal title has not been vested in the purchasers, has the power to cause it to be done. The validity of the sale of the other property is not questioned. It is clear that a judgment had in a court of law in one state cannot in any way affect the title to land in another state. Reference is made to the case of Muller v. Dows, 94 U. S. 444, to sustain this sale. That case is authority in point as to the property first sold in the Black-barn Case, as that property was an entirety; but I am of opinion it is not directly so with reference to the lands embraced in this suit. It is stated, however, in the Muller-Dows Case, as follows:
“It is here undoubtedly a recognized doctrine that a court of equity sitting in a state and having jurisdiction of the person may decree a conveyance by him of land in another state, and may enforce the decree by process against, the defendant.”
The same doctrine is held by the supreme court of this state in the case of Richardson v. McLemore, 60 Miss. 315. If a court of equity has the power to compel a conveyance of land outside the state in which (he court is held, it is illogical to say that when a bill is filed to foreclose a mortgage by a railroad company covering property in several states, and all the parties are before the court, the mortgagor and the trustees in the mortgage and the bondholders, the court has not the power to decree a sale of the lands, and order the same to be made by its own commissioner, or by the trustee or trustees, and the conveyance to be made by the mortgagor or by all of them. But, as there are some doubts on this point, and there are others upon which the right of the parties- may he determined with loss difficulty, it will be passed without a decision the one w*ay or the other.
The next question to be considered is as to the effect of the judgment, sale, and conveyance under which complainants assert, title to the lands in controversy. It is insisted upon the part of defendants that the judgment was void for two reasons: First, because the return of the
The first question presented is as to the validity of the title acquired by the liquidating levee commissioners or levee board. The tax for which these lands were sold was a local and a special tax of five cents per acre on part, and three cents per acre on part, levied by the legislature, and declared by the statute to be a tax in rem on the lands situate in the levee district for the purpose of paying the indebtedness incurred by the general levee board prior to the year 1862. This statute has been held valid by the supreme court of this state in the case of Gibbs v. Green, 54 Miss. 592, and Bunch v. Wolerstein, 62 Miss. 56, and in subsequent decisions. In the cases above referred to it is said that the act of 1867 constituted a contract between the state and the bondholders, and that the taxes arising under its provisions, and the lands purchased and held by the levee commissioners, constituted a fund for the payment of the liquidating levee bonds and interest, which the legislature had no power to divert to any other purpose; that the legal title, vested in the levee commissioners by a sale and conveyance of the land for the non-payment of the taxes, was transferable at their pleasure for the purpose of paying said bonds.
Numerous exceptions are urged and taken to the validity of these sales. One of these applies to the lands in Sunflower county and portions of the lands in other counties, and is based on the fact that the lands were entered with what is known as “Swamp-Land Scrip,” issued to other counties. The contention is that scrip issued to one county could only be located on lands situate in that county, and that, when not so located, the title to the lands remained in the state, and they were not subject to taxation for any purpose. After a careful consideration of this question 1 am satisfied that the objection is not well taken as to the lands in the
Objections are also taken to the time and manner of the sales and conveyances, which need not be considered in detail. A number of these objections would be maintainable but for the effect of the statutes of the state enacted before and since these sales were made, as determined by the supreme court of the state. It must be admitted that there is; at least, a seeming conflict in some of the decisions on these questions; but in the more recent adjudications this real or seeming conflict does not arise or exist. These are entitled to the greater weight; and, being a construction of these statutes by the court of last resort of the state, they are binding upon this court, and especially so when, after careful examination of the purposes of the statute imposing the levee tax, and the condition of the lands and the great conflict of the titles to them, I am satisfied that the recent decisions are sustained by the better reason. Owners of land are vested with certain constitutional rights of which they cannot be deprived by either legislative enactments or judicial decisions, one of which is that they cannot be deprived of their titles to their lands except by due process of law. It was held by this court on tile demurrer in this cause that to deprive the owner of land of his title by reason of the non-payment of taxes thereon these things must concur: First. There must' have been a lawful tax imposed by some body of men, or some one having authority to levy it. Second. If the tax was based upon the value of the land, it must have been ascertained by some one authorized by law to assess such value. Third. There must have Ijpen a default in the payment of the tax within the time prescribed by law. Fourthly. There must have been a sale and conveyance made by some one authorized to make the same. These are conditions which the legislature can neither dispense with nor cure by subsequent legislation, nor can the want of 'them be dispensed with or cured by judicial decision. But, under well-recognized rules, any irregularities in these proceedings,
“ — That all sales of lands hereafter made for non-payment of taxes, due under any law of this stale, shall be valid to all Intents and purposes, — said lands subject to redemption as provided by law,— and that no such sale shall be impeached or questioned in any manner or for any cause saving fraud or mistake in the assessment, or sale of the same, or upon the proof that the tax for which the same was sold had been paid prior to such sale; and no suit to set aside any title acquired under such sale, hereafter to be made, shall be brought unless within five years from the date of the sale. ” Bee Acts 1859-GO, p. 216.
The provisions of this act were held by the supreme court of this state in the caso of Belcher v. Mhoon, 47 Miss. 613, to apply to sales for levee taxes; and this ruling stands unreversed. By section 5, Acts 1873, amendatory of the liquidating levee law, it is provided;
“ — That upon the expiration of live years from and after the sale of lands for levee taxes under the provisions of said acts no testimony or evidence to impeach or invalidate the deeds therefor * * * shall be entertained by any court of law or equity in this state except in cases of fraud.”
And by the fourth section of the same act of power to sell for back taxes or more than one year’s taxes is given where the land is delinquent; and all prior sales of this character are validated, whatever might have been the irregularity or informality. Acts 1873, pp. 151-153. The fifth section of the act of 1888 io quiet and settle titles to certain lands in the Yazoo Mississippi delta provides that all sales of lands in the levee district made for the non-payment of levee taxes due thereon shall be and are declared to be valid, and not subject to impeachment for any cause except that the tax for which the land was sold had been paid, and except in cases where the defendant had been in continuous adverse possession of the land, claiming under title or color of title since the date of sale to the levee board, and had continuously paid the taxes thereon, or against any one claiming the land under sales made by the sheriffs under the abatement act of 1878. Acts 1888, p. 42. The proof does not show' that any of the lands embraced in this suit are now, or ever have been, in the actual occupancy of either party or any one else, so that the question of actual possession is not involved.
I am of opinion that, under the decisions of the supreme court of the stale in the cases of Nevin v. Bailey, 62 Miss. 436; Sigman v. Lundy,
It may be that a more minute examination of the evidence would develop the fact that a few of the tracts of land described in the pleadings will not be found to belong to either party, as is the case with regard to the lands in Sunflower county, conveyed by S. M. Thompson, which wore located with scrip issued to Choctaw county; and other lands in which there is not sufficient evidence of defendant’s title, especially certain lands in Bolivar county, unless the title was obtained under the sale of 1875 and the conveyance to J. D. Stewart, the receiver. Such tracts, if they exist, are few in number; and as the lands the title to which is involved in this suit amount to 200,000 acres, and the value in the neighborhood of $1,000,000; and as the title to more than the same number of other acres of equal value, and most of which are now in suit in this court and in the circuit court of the United States in the northern district of this state, depends upon the same law and facts involved in this cause ; and ,as I am so strongly impressed with the uncertainty as to whether the Selma, Marion & Memphis Railroad Company had ceased for any purpose to have an existence before the suit of Timpson against the railroad company was instituted; and, if so, that the judgment and all proceedings had in said suit were void, and the complainants are without any title to any of these lands whatever; and also as to the invalidity of the title under the sale made in pursuance of the decree of the United States circuit court for West Tennessee in the cause of Luke P. Blackburn, above referred to, — I deem it best to dismiss complainants’ bill to the end that an appeal may be taken at once to the supreme court of the United States, where the errors in the conclusion reached by me will be corrected, and such decision rendered as will finally ami conclusively settle the vexed questions of title to this large body of land, which is rapidly increasing in value. In justice to myself, as well as to the learned and distinguished counsel on both sides who have aided me by their diligent research into the facts and law presented in this case, I cannot conclude this opinion without returning my thanks for their able and exhaustive arguments in presenting the questions of law arising on each side. It gives me great pleasure to state
See 13 Fed. Rep. 194.