Henderson v. Blair

59 So. 856 | Miss. | 1912

Smith, C. J.,

delivered the opinion of the court.

Appellant filed his bill in the court below to cancel the claim of appellees to the land in controversy as a cloud on his title. This land was a part of the swamp and overflowed land granted to the state by the act of congress of September 28, 1850, entitled “An act to enable the state of Arkansas and other states to reclaim swamp lands within their limits,” and which is in part as follows: “To enable the several states (but not including the state- of Kansas, Nebraska, and Nevada) to construct the necessary levees and drains, to reclaim the swamp and overflowed lands therein, . . . the whole of the swamp and overflowed lands, made unfit thereby for cultivation, and remaining unsold on or after the 28th day of September, A. D., eighteen' hundred and fifty, are granted and belong to the several states respectively, in which said lands are situated. . . . The proceeds of said lands, whether from sale or by direct appropriation in kind, shall be applied exclusively, as far as necessary, to the reclaiming said lands, by means of levees and drains.” Act Sept. 28, 1850, ch. 84, 9 Stat. 519, 7 Fed. Stat. Ann. 399. Shortly after the passage of this, act the land in controversy, along with other land in Monroe county, was selected as inuring to the state by virtue of the provisions thereof. This selection was reported to the Secretary of the Interior, but was not approved by him, and no patent was issued to the state, until the 7th day of May, 1907. The issuance of a patent, however, was''not necessary in order to perfect the title of the state, for title vested immediately upon the passage of the act, and became complete upon the identification of the land. See cases cited in note to section 2479, 6 Fed. Stat. Ann. 399.

At the various sessions of tlie legislature held during the years immediately following the passage of this act of congress, numerous laws were passed providing for the sale of this swamp and overflowed land, and the application of the proceeds thereof within the various counties where the land was situated to the purposes prescribed by the act of congress. Among these was one of October 20, 1852 (Laws Miss. Called Sess. 1852, p. 57), which designated certain named persons as commissioners to select and sell the swamp and overflowed land situated in the county of Monroe ‘‘for the purpose of reclaiming swamp lands and levee of the Buttahatchie river. ’ ’ In 1854 this statute was amended by an act approved March 21st, which will be found on page 550 of the Laws of that year, by which it was provided, first, that the commissioners appointed tbe act of October 20, 1852, should report to the board of police of Monroe, county the number of acres of land selected by them,, how much thereof had been confirmed by the Secretary of the Interior, how much sold, for what sums, and to-whom, etc.; second, that when this report should be made their terms of office should expire, and the board of' police of Monroe county should then appoint a swampland commissioner, whose duty it was “so soon as the-title to said swamp land is confirmed by the Secretary of the Interior to the state of Mississipi to advertise and! sell said swamp land for cash, after giving such notice of the time and place of sale as may be ordered and directed by the board of police of Monroe county,” and,, further, that it should be “the duty of said swamp land-commissioner to apply the proceeds of said sales, under the supervision of tbe board of police, to the payment of the contractors who shall have, bona fide, contracted' with the present commissioners and who shall have conpleted said contract according to the terms and specifications of the same, and said commissioner shall have-full power to make title to the purchaser or purchasers-of said land, and the state of Mississippi hereby divests herself of all the title she may have acquired, or may hereafter acquire, to said lands, under the act of 28th ‘September, 1850, and it shall be the duty of the secretary of state to issue a patent to said commissioners so soon as the same is confirmed by the Secretary of the Interior, . . . and should there remain any money from and proceeds of said sale, after discharging the present contracts, the same shall be disposed of by said commissioner under the supervision of the board of police in any manner not inconsistent with the act of congress, of 28th September, 1850.” The board of police of Monroe county, pursuant to this statute, appointed a man named Dillingham as swamp land commissioner, and he proceeded to assume and discharge the duties of that office. No sale of the land in controversy is shown to have been made; the nearest approach thereto being oral evidences that the swamp and overflowed lands in Monroe county had been sold at the county seat thereof by order of a board of supervisors, but no deed was shown to have ever been made by Dillingham, or any swamp land commissioner of Monroe county, to any one to the land. In 1857 this land was assessed to Thomas Sartor, and he and those claiming under him paid taxes thereon until 1879, in which year it was sold to the state for unpaid taxes, and afterwards by the state to Charles Boy, under whom appellees claim by mesne conveyances.

Section 6, article 8, of the Constitution of 1868 provides that “there shall be established a common school fund which shall consist of the proceeds of the lands now belonging to the state, heretofore granted by the United States, and of the lands known as ‘swamp lands,’ ” etc. In 1877 the legislature enacted a statute entitled “An act to revise, amend and consolidate the various acts .relative to swamp lands, donated to the state of Mississippi under the act of Congress the 28th of September, 1850” (Laws 1877, page 33), by which the office of commissioner of swamp lands was created, for the reason “that the record of land sales now on file in the office of the secretary of state are in an imperfect condition, showing repeated conflicting sales, selections,” etc., and authorizing him “to sell and dispose of said swamp lands remaining unsold.” On the 25th day of September, 1903, appellant purchased the land from the state land commissioner, successor to the commissioner of swamp lands, and received from Mm a deed thereto. His contention is that the statute approved March 21, 1854, together with all other statutes providing for the sale of swamp and overflowed lands and the disposition of the funds realized therefrom, were necessarily repealed by the adoption of the Constitution of 1869 and the passage of the statute of 1877 creating the office of commissioner of swamp lands, and that since no sale of the land in controversy is shown to have been made prior to the adoption of this Constitution and passage of this statute, the state land commissioner, who is successor to the commissioner of swamp lands, had full power to sell and convey the land to Mm.

The question wMch lies at the threshold of this case is: Was the swamp and overflowed land-in Monroe county granted to it by the act of 1854 in such manner as to become a vested right in the county, not subject to impairment by a subsequent legislature without its consent? One of the cardinal rules in the construction of a statute is that “the legislative intent must be determined from the view of the whole act with reference to the subject-matter to which it applies.” 36 Cyc. 1128. And in Warren County v. Nall, 78 Miss. 726, 29 South. 755, it was held by this court that “a legislative grant of lands, acquired by the state from the general government in trust for a public purpose, to a county, in furtherance of such purpose, is not a donation, and rules for the construction of governmental gifts should not be strictly applied thereto. Such a grant does not require for its validity the use of the technical terms found in ordinary conveyances of land, and should be sustained if it can reasonably be done.”

. Taking this act, then, by its four corners, and viewing it as a whole, with reference to the duty imposed upon the state by the act of Congress under which she received the land, and in the light of the general legislative intent, apparent in all of the statutes dealing with this land, to "appropriate it to reclamation purposes within the counties where situated, it seems to us manifest that by it the legislature intended to divest the state of all title to the land and invest it in the swamp land commissioner for the benefit of the county. After creating the office of swamp land commissioner, it invested him with full power to sell and dispose of the land, under the supervision of the board of police, to apply the proceeds to local improvement purposes, and expressly divested the state of all title which she then had or might thereafter acquire. It is true that the secretary of state is directed to issue a patent to the commissioner as soon ‘as the land should be confirmed to the state by the Secretary of the Interior; but this did not have the effect of postponing the vesting of title. The title was divested out of the state and invested in the swamp land commissioner immediately upon the passage of the act, and when the land was afterwards identified in any manner as swamp and overflowed land, the title thereby became perfect without the issuance of a patent. “The patent would simply be evidence of such an identification and declaratory of the title conveyed.” Wright v. Roseberry, 121 U. S. 488, 7 Sup. Ct. 985, 30 L. Ed. 1039; Tubbs v. Wilhoit, 138 U. S. 134, 11 Sup. Ct. 279, 34 L. Ed. 887; Fore v. Williams, 35 Miss. 533; Daniel v. Purvis, 50 Miss. 261.

If this is true, then the right to the land became vested In the county, and was not subject to impairment by any subsequent acts of the state without its consent. Jackson v. Dilworth, 39 Miss. 772; Clements v. Anderson, 46 Miss. 581. The patent received by appellant from the state land commissioner is therefore void-; and, since he must stand or fall on the strength of his own title, it becomes unnecessary for us to determine what title, if any, appellees may have, that being a question betwen them and the county of Monroe.

Affirmed.