32 So. 2d 126 | Miss. | 1947
Lead Opinion
Appellee county, as statutory trustee, instituted suit seeking to cancel all claims of the defendants to Sec. 16, Tp. 9 N.R. 4 E. in said county. Three of the defendants, *635 appellants here, appeared and defended as to the west half of said section, and have appealed from an adverse decree.
By Secs. 2015 to 2019, inclusive, Code 1871, it was provided that the school directors of each district, upon an affirmative vote of the qualified electors of the township could sell the lands appropriated for the use of schools in that township. The several steps to be taken to effectuate such a sale were specified, concluding with the provision that "The school directors are hereby authorized and required to execute all conveyances, on behalf of the township, for any lands sold as herein provided . . ."
On January 1, 1875, L. Long, Superintendent of Public Education of the county and ex officio president of the board of school directors, acting in his official capacity, and in consideration of $100 paid, conveyed the N 1/2 of NW 1/4 of said section to Emeline E. Stevens, and on the same day the said Long acting as aforesaid, and in consideration of $100 paid, conveyed the SW 1/4 and the S 1/2 of NW 1/4, less 13.79 acres off the east side, to Wm. A. Abbott, both deeds being duly acknowledged on February 3, 1875, and recorded. The books of the county treasurer show the payment of the $200 under date February 4, 1875.
Soon after the execution of the foregoing deeds the grantees therein went into the actual possession and occupancy of the lands therein described, and they and their lawful successors in title have remained so in actual possession and occupancy of the whole thereof continuously for more than seventy years. Appellants here are the successors in title as aforesaid to all the land for which they have defended, and as described in the two deeds aforementioned, and they rely not only upon the said deeds, but also upon the twenty-five years statute of limitation applicable to schools lands, in effect since the Code of 1892. That statute, now Section 6596, Code 1942, reads as follows: *636
"Adverse possession for a period of twenty-five years, under a claim of right or title, shall be prima facie evidence in such case that the law authorizing the disposition of the lands has been complied with and the lease or sale duly made."
Appellants have gone to some trouble to show by pertinent authority that the statute authorizing the sale of these township lands was within the constitutional power of the Legislature, there being nothing in the Constitution of 1869 to prohibit it. The Attorney General in response does not challenge the constitutionality of the cited statute, and the question not being raised by the state or county, the case will be treated as if no such point has been mentioned. State ex rel. Jordan v. Gilmer Grocery Co.,
But the State relies on what was said by this Court in Weiler v. Monroe County,
The State contends that the two deeds made for the school authorities on January 1, 1875, were not made by the school directors as the statute required, but were made *637
by the president thereof. A sufficient answer to this contention is contained in Forsdick v. Tallahatchie County,
The showing thus made by appellee is one negative in its nature, whereas it was distinctly held in Yazoo M.V.R. Co. v. Bolivar County,
Here, to summarize, the undisputed facts are that appellants and their predecessors in title have been the undisputed, continuous and actual occupants of the lands for more than fifty years since the Code of 1892 under recorded deeds in fee simple purporting to have been executed by lawful authority, and if they can be put off the lands because a record cannot now be found that this or that statutory step was taken, then the twenty-five years statute had as well never been enacted. To bridge such things was the purpose of the statute. The two deeds in 1875 to the predecessors in title of these appellants evidenced a claim of right in their behalf, was color of title in fee simple, and their possession under that claim and color for more than twenty-five years after 1892, in the absence of an affirmative showing that no valid sale was in fact made, renders the title acquired by this adverse possession under claim of title such that *638 it cannot be successfully assailed, to adopt in effect the concluding paragraph of the Court's opinion in Yazoo M.V. Railroad Co. v. Bolivar County, supra.
Appellee says, however, that the twenty-five years' statute cannot be interposed in behalf of appellants, because appellee says a ninety-nine year lease on the entire section 16 was made on January 23, 1837, to John Barnes, under the Act of February 27, 1833, so authorizing, and that this lease did not expire until March 4, 1936; that appellee had therefore no right to the reversion until the latter date, and that adverse possession under the twenty-five years' statute would not begin against appellee until that time, which would have thence run much less than the twenty-five years period.
The recorded instrument which the county presents is not a ninety-nine year lease to John Barnes, but at most is an agreement to give him such a lease. The instrument recites that it was executed for a credit consideration of four notes payable in one, two, three and four years. The statute expressly provided that "it shall be the duty of the trustees on the final payment of the money which may be due and not before, to convey" the ninety-nine year leasehold interest. There was no authority to execute a ninety-nine year lease to Barnes on January 23, 1837, or at any time thereafter until all his four notes were paid, so that the paper presented is no ninety-nine year lease or any lease, as a valid lease, at all.
Appellee says, however, that the presumption is that Barnes paid the notes and went into possession and thereby became entitled to the lease and that same now stands good in equity. Had Barnes gone into possession, or had otherwise exercised any substantial rights over the land, a presumption of payment would arise by the long lapse of time. There is no presumption that a purchaser has gone into possession. Taylor v. Twiner,
On the contrary the proof shows that Barnes in all the years had never made any conveyance or assignment whatever of any interest in the land. The assessment rolls for 1842, 1843, 1846 and 1854, being all that could be found on a search, shows no assessments to him and none for the lands in that Sixteenth Section but the assessment roll of 1846 does show the entire section 16 Tp. 9 R. 4 E. to be school land.
The inference from the record as a whole is that Barnes did not, in fact, pay his lease money, was never entitled to such a lease, and that he abandoned the effort to secure it as so often happened throughout the state on the bursting of the bubble of the flush times of 1835-7, the collapse following closely upon or toward the close of the year 1837, as the history of that period informs us, — informs us how, during the inflationary period of three years from 1835 to 1837, inclusive, speculation in everything on credit, including land titles, was the order of the day, and how at the end of the latter year credit was gone, money had disappeared, and nobody paid or could pay anything — how the controversy with the Bank of the United States and the declining price of cotton brought about the panic beginning in the fall of 1837, which prostrated the whole financial, industrial and commercial system of the country for six or seven years.
Our conclusion then is that Barnes never had a ninety-nine year lease, and that therefore such a supposed lease presents no impediment to the application of the twenty-five years' statute of adverse possession in appellant's favor.
Reversed and decree here for appellants. *640
Addendum
In appellee's brief, on the submission of this case to the Court, after quoting in full the Act of February 27, 1833, the following is stated: "It is under the provisions of the above statute that the lease was given on January 23, 1837 . . . to John Barnes . . ." Appellee thereby planted itself squarely upon the Act of February 27, 1833, and made no mention anywhere in its brief of the Act of December 16, 1830, whence the Court was under no duty to search through volume upon volume of the old acts of the Legislature on the supposition or assumption that counsel for appellee had missed something and had not relied on the correct Act.
Not only will the Court, as a general rule, refuse to consider new points first made on a suggestion of error (Crabb v. Wilkinson,
It is interesting to note that Section 5 of the Act of December 16, 1830, reads as follows: "It shall be the duty of the trustees, whenever they lease any land according to the provisions of this Act, to cause to be redeemed in the clerk's office of the county court of the proper *641 county, the whole of the proceedings relating thereto," and to note further that nothing but the case itself appears to have been recorded, and at the same time to note that one of appellee's main contentions is that all the proceedings in regard to the sales to appellants' predecessors in title made in 1875 do not appear of record.
Suggestion of error overruled.