Hewling v. Blake, 70 So. 247

Hewling v. Blake

70 So. 247 | Miss. | 1915

Stevens, J.,

delivered the opinion of the court.

Appellants sued in equity to confirm title claimed by them to the lands described as the north half and southwest quarter of section 6-, township 17, range 4 east, Choctaw district. The defendants made their answer a cross-bill, praying similar relief. The lands lie just north of the Yazoo river in Warren county; and both parties agree that the title passed from the United States to the state of Mississippi under the act of Congress approved September 28, 1850 (chapter 84, section 4, 91 Stat. 5191), and were thereafter ceded by the state of Mississippi to the county of Warren by an act of the legisla*237ture approved October 19, 1852, “for tbe purpose of constructing, repairing and keeping up the levees in that county.” Laws Called Sess. 1852, ch. 68. The board of police were authorized to sell these lands, the deeds 'o be executed by the president under the order of the board. Appellants and appellees both claim title to the north half of the section through conveyances from Warren county; appellants claiming through mesne conveyances based on the deed from the board of supervisors of Warren county to Philip H. Feld in December, 1902, and appellees claiming by descent from Benson Blake, who is alleged to have purchased the north half of the section in 1858. Appellants deraign a perfect chain of title. Appellees are unable to produce the deed from the board of police to Benson Blake and which they say has been lost or destroyed and cannot now be produced. In support of the existence of this missing deed, they rely upon an order on the minutes of 'the board of police dated April 17,1858, reciting, among other proceedings :

“The following swamp lands in Warren county, Miss., have been sold and the purchase moneyi paid to the levee commissioner and deeds are asked to be made to the purchaser, to wit: . . . Benson Blake, north half 6, township 17, range 4 east, three hundred and twenty acres at fifty cents, one hundred and sixty-two dollars. Ordered, that the president execute deeds to the foregoing parties respectively for said lands purchased by them. ’ ’

Appellees claim' title, not only through' this lost or missing deed, but by adverse possession.

Appellants make the same deraignment of title to the south west quarter of the section as they do to the north half. Appellees, as to the south west quarter deraign title from the sale of this land to the state, for taxes, ,Tuly 1, 1867; and by mesne conveyances to them of said tax title. They also claim title to this, as well as the north half of the section, by adverse possession. Sever*238al witnesses were introduced to establish adverse possession by appellees; and the chancellor found, as a matter7 of fact, that appellees held such possession of all the lands as their character would reasonably permit. He further held that the purchase of the north half of the section by Benson Blake, the payment of the purchase price, the order of the board directing the president to execute the deed, and the subsequent possession, confer a good and perfect title to the north half of the section. The chancellor further .found that appellants were not innocent purchasers for value and without notice of the claim of appellees. The decree of the court below canceled the deeds under which appellants claim, and confirmed appellees’ title.

There is ample evidence to justify the finding of the chancellor that appellants had notice of appellees’ claim.' It is shown that Warren county adopted an official county map,- on the face of which claim of ownership by the Blake family is indicated. The sectional index used by the county reflects all the conveyances affecting these lands, and shows numerous deeds executed by the Blakes from time to time. The property has been assessed to, and taxes paid by, the Blakes all the while.

The chancellor was likewise correct in his holding that appellees owned the legal title to the north half of the section. The order of the board of police of April 17, 1858-, shows that Benson Blake bought and paid for this portion of the land; and the president was directed to execute to him a deed in pursuance of this purchase. Benson Blake had the lands assessed to him, and paid taxes evely year continuously until his death, and his heirs have continued to pay; and, since 1890, have cut and sold timber, leased the lands for pasturage purposes, granted hunting and fishing privileges, and otherwise used these swamp lands as any reasonably prudent owner would do under like circumstances. But for the Constitution of 1890 (section 104), providing that the statute of limitation here involked shall not run against the state *239-or any subdivision thereof, appellees would have had conferred upon them title by adverse possession; and the chancellor would have been justified in so finding. The case, however, as to the north half is controlled by the recent decision of this court in Caruth v. Gillespie et al., 68 So. 927. The law, from the long-continued possession of the Blake family, such as is disclosed by this record, presumes the execution and delivery of the deed under which Benson Blake claims. This presumption is not only one of law, but is supported by the order of the board of police, which in itself is sufficient to characterize Benson Blake as the equitable owner. It cannot be said that appellees have no title simply because they are unable to produce a deed executed half a century ago. This salutary presumption of the law, under the circumstances of this case, protects appellees in the use and enjoyment of this old estate, and at least shifts the burden to appellants to show that the deed was not in fact executed.

As to the southwest quarter of the section, the case is different. The pronounced acts of possession, proved by appellees, occur subsequent to 1890. Prior, to that time, the Blake family had prosecuted Dennis Burns for trespass on the lands; had given the land in for assessment, paid the taxes continuously, and executed deeds of trust covering the land. There is shown no clearing, cultivation, or improvements of any. kind, prior to 1890. The owners, according to the positive evidence, cut no timber for commercial purposes or otherwise. There was no act of possession calculated to arouse the attention of the true owner. The Constitution of 1890 stopped'the running of the ten-year statute of limitations. Appellees do not claim title to this portion of the land through any •conveyance from the board of police -of Warren county in accordance with the act of 1852. The only color of title is through the tax sale to the state in 1867, record of which is in existence. So far as the record of this case ■discloses, this portion of the land belonged to Warren *240county, in trust, for the purpose mentioned by tbe act of 1852. It was such land as was not subject to sale for taxes. Tbe tax sale relied on, therefore, is -void and conveyed no title.

A careful examination of tbe record convinces us tbe chancellor erred in bolding that appellees had title to the southwest quarter of this section, by adverse possession, under color of title furnished by this tax sale. Inasmuch as they have neither the paper title nor title by adverse possession, the decree of the court below as to this portion of the land will be reversed. The decree will be affirmed as to the north half of section 6, and reversed as to the southwest quarter, and decree rendered here in favor of appellants for the southwest quarter of the section.

Affirmed.

Reversed.