Jonas v. Flanniken

| Miss. | Oct 15, 1891

Campbell, C. J.,

delivered the opinion of the court.

The defense on the ground of estoppel fails for want of evidence to support it.

The ten-years'" statute of limitations is not available to the defendant, because both the amended and original bills were exhibited before the expiration of ten years from the inception of the title in severálty held by her as grantee of Mrs. Jordan, whose title as sole owner was vested in her on June 20, 1879, by the conveyance of Howard. Prior to that the land had not been held in severalty by any person under whom the defendant claims.

The title of the defendant to the forty acres in section 27 was unassailable at the time of bringing this suit, by reason of the lapse of three years from the date of the sale to the state for taxes. The sale to the state was made January 3, 1876, and §1709 of the code of 1871 was then in force, and its subsequent repeal did not prevent the operation of the prescribed period to render the title unassailable. Gibson v. Berry, 66 Miss., 515" court="Miss." date_filed="1889-04-15" href="https://app.midpage.ai/document/gibson-v-berry-7986752?utm_source=webapp" opinion_id="7986752">66 Miss., 515; Sigman v. Lundy, 66 Miss., 522" court="Miss." date_filed="1889-04-15" href="https://app.midpage.ai/document/sigman-v-lundy-7986754?utm_source=webapp" opinion_id="7986754">66 Miss., 522.

It is immaterial whether the sale was valid or not, or whether the assessment was regular in all respects. There was an assessment by the assessor, and a levy of taxes based on this assessment, and a sale for taxes; and these things, with the three years, rendered the tax-sale unassailable. The law was unnecessary as to valid sales for taxes, and was enacted to cure irregularities, such as are alleged against this sale.

The proposition that the defendant cannot invoke the protection of the statute referred to, because her vendor, Mrs. Jordan, was the wife of C. M. Jordan, who was co-tenant of the land, is not maintainable. The facts are that Mendenhall purchased the land from the state May 23, 1878, and coveyed it to Howard April 5,1879, and he, having acquired, after this, another title by conveyance from Reynolds and Houston of this land, conveyed to Mrs. Jordan, who conveyed to the defendant. As observed, the state title wTas first acquired by Howard, who afterwards bought of Houston and Reynolds their title, which was obtained by the conveyance of Eckford, trustee in the deed of trust executed by McAlister and wife and C. M. Jordan, which conveyance by Eckford to Reynolds was made June 14, 1879, and before the conveyance by Howard to Mrs. Jordan. When Howard con'veyed to Mrs. Jordan, all interest of C. M. Jordan in this land had ceased. He was then a stranger to the title, and might himself have purchased.

Mrs.-Jordan had no connection with the title prior to the conveyance to her by Howard, who, as stated, first acquired title from Mendenhall, who purchased from the state. As Howard obtained, by his purchase from Mendenhall, the state’s title, his subsequent purchase of the title of Reynolds, who held under Jordan, did not prevent the running'of the three-years’ statute prescribed by § 1709 of the code of 1871, in favor of the tax-title, or affect his grantee, Mrs. Jordan, with disability to invoke this statute because there was united with the tax-title one which came from her husband as co-tenant. Supplementing the tax-title with another did not impair it, and the holder of it lost nothing by reason of having another. The defendant, who purchased of Mrs. Jordan, in whom was vested, by Howard’s conveyance, the tax-title the state had conveyed to Mendenhall, and he had couveyed to Howard before Houston and Reynolds had conveyed to him their title, had the right to look to that, the older, as the principal source of title, and rely on it with all its incidents unimpaired by any infirmity in any supplementary title held by a grantor.

The position of the defendant as to the land in section 26 is different from that occupied as to the other. She acquired this as well as the other by purchase from Mrs. Jordan it is true, but Mrs. Jordan acquired it by the conveyance of Howard, who had no title to it except as obtained from Houston and Reynolds, who were co-tenants of the land with others. The inquiry is, “Hid three years’ actual occupation of this land vest title by virtue of § 589 of the code of 1880 ? ” Mrs. Jordan, by the conveyance of Howard, acquired no other title but that of Houston and Reynolds to this land. It was sold to the State for taxes, March 4,1878, and purchased from the state by Reynolds, April 15, 1879. He was a co-tenant of this land, and, as such, disabled to acquire title in this way as against co-owners. Howard, Mrs. Jordan, his grantee, and the defendant, her grantee, took this land charged with notice, because shown by the record of the title purchased, that Reynolds was a co-tenant, and disabled to acquire title for himself by purchase of the tax-title, and they, severally, held this title as Reynolds .did, and, because of this, the defendant cannot invoke successfully § 539 of the Code of 1880. McGee v. Holmes, 63 Miss., 50.

As to the forty acres in section 26, the defendant is not protected by lapse of time, and as to that the complainants are entitled to relief.

The decree is reversed as to the land in section 26, and affirmed as to the other, and the cause is remanded for further proceedings in the chancery court in conformity to this opinion.