Gilchrist-Fordney Co. v. Keyes

74 So. 619 | Miss. | 1917

SteveNs, J.,

delivered the opinion of the court.

Appellant prosecutes this appeal from a decree of the chancery court of Smith county sustaining a demurrer to an amended bill of complaint exhibited by appellant, as complainant in the court below, against appelless, by which it is sought to reform a deed conveying timber rights on sixteenth section lands, and by which it is further sought to quiet and confirm the alleged title of the complainants in the merchantable timber on the lands described in the bill. It is charged in the amended bill that appellees E. B. Keyes and Homer Currie were tenants in common of the unexpired lease of said land, that on February 16, 1900, appellee Keyes conveyed the timber to one Ainsworth, and that by mesne conveyances appellant acquired Ainsworth’s title to the timber. It was further alleged that on February 8, 1911, appellant purchased the merchantable timber from the board of supervisors of Smith county. In de-raigning title, the bill shows that there was no order entered upon the minutes of the board of supervisors evidencing any contract by which the board undertook to sell or did sell the merchantable timber, or by which the board undertook to convey the timber on the lands in question. The deed shown in the deraignment of the title appears to be a deed executed simply by the individual members of the board of supervisors without a precedent order entered in open and regulat meeting. The bill shows that Keyes, in executing a conveyance to the timber, described the property conveyed as being “all falling and lying timber.”

Complainant charges that the grantor intended to convey “all standing, falling, and lying timber,” and that by mutual* mistake the word “standing” was omitted. The record shows that, while the timber deed in question was executed in 1900, no complaint of this mutual mistake is made until the filing of the amended bill of complaint in February, 1914. The grantee of this right to the “falling and lying timber” appears to have undertaken to purchase the merchantable timber from the board of supervisors. This alleged deed of the board to the merchantable timber was executed in 19Í1, and, at the time it was executed, appel-lee Homer Currie owned an undivided interest in the unexpired lease and had not joined in the execution of any timber deed whatever. Homer Currie was not a party to any effort to purchase ' the merchantable timber, but claims adversely to appellant. The bill seeks to cancel the claim of both Keyes and Currie to the merchantable timber as an alleged cloud upon the title of the complainant.

The amended bill and exhibits thereto show that appellant has no title to the timber. The bill is essentially one to confirm title. To entitle the complainant to the relief sought, it must deraign a good title and prevail upon the strength of its own claim, the bill must present a perfect deraignment of title. In our judgment, the deed executed by the individual members of the board of supervisors, unsupported by a precedent order entered upon the minutes, is a nullity. In Bridges & Hill v. Board of Sup’rs, 58 Miss. 817, our court, by Chalmers, C. J., observed:

It takes an affirmative act of the board within the scope of its authority, evidenced by an entry on its minutes, to bind the county by a contract.”

And in Marion v. Woulard, 77 Miss. 343, 27 So. 619, there was an effort to recover from the county seventy-eight dollars for services rendered as a quarantine guard during the yellow fever epidemic, and the court, by Whitfield, J., says, “Nor was there any contract made on the minutes 'of the board,” and cited the Bridges & Hill Case.

Under the opinion which we entertain on the one point mentioned, we pretermit any expression of opinion of the apparent laches of the complainant in waiting fourteen years to seek reformation, or upon the statute of limitation. The primary object of this bill is to recover the merchantable timber as against appellees, and, in so doing, to rely upon a title which could only be conveyed by the board of supervisors. In acquiring title to the merchantable timber, a good and valid order of the board would be the sole evidence of the contract, and without a contract there could be no valid conveyance by the members of the board. The statutory jurisdiction of the board to sell merchantable timber on sixteenth section school lands is of far-reaching imporance and must be exercised in county meeting, where negotiations may be had and all objections heard, and a safe contract agreed upon. The enforcement of any other rule would permit to be done secretly that which should be done openly and in the light of the widest publicity.

It further appears that the rights of Homer Currie, as one of the lessees, have been utterly ignored.

The case of Caston v. Lumber Co., 69 So. 668, relied upon by appellant, has little application, and certainly does not control the main point here presented.

A-ffiirm ed.