69 Miss. 747 | Miss. | 1892
delivered the opinion of the court.
Assuming all controverted facts to be in favor of the appellees, the history of the'title of the lands in controversy, ■chronologically stated, is this:
In May, 1868, the lands, then being owned by George E. Williams, were sold for the non-payment of levee taxes, and .at said sale were bought by the liquidating levee board. In ■ September, 1868, Williams conveyed the lands to Mrs. M. A. V. Crawford and others, reserving to himself an estate for his own life therein. The title thus conveyed, it is agreed, after-wards passed to the complainants, but the date does not appear. In 1870 the lands were again sold for levee taxes, and •conveyed to the levee board, but were redeemed by Williams
Mrs. Matthews, the widow of J. M. Matthews, married J. G. Merrill, and died childless, whereby her husband inherited. her estate; and after her death, and on June 20, 1888, J. G. Merrill, claiming to be a purchaser of the lands under the decree in Green v. Gibbs, procured from the auditor a conveyance of the state’s title derived under the tax-sale of 1875, under the provisions of the act of March 2, 1888, entitled “An act to quiet and settle the title Oto certain lands in the Yazoo Delta, which were sold by the commissioners of the chancery court for the first district of Hinds county, in the case of Joshua Green and others v. Hemingway & Gibbs, treasurer and auditor and ex officio levee commissioners.” Laws, p. 40.
The appellants, after this, applied to the auditor to purchase the title of the state, contending that, the deed from Gwin and Hemingway to Matthews having been canceled by
The auditor claimed that, having made the conveyance to Mr. Merrill, the state no longer had any title to convey to complainants, and refused to execute a deed as requested. Other facts appear in the record, but they are unimportant for the decision of the cause. On the above facts, the appellants seek, by their present bill, to cancel the conveyance made by the auditor to Merrill, and to compel him to execute a deed to them, conveying the state’s title derived under the tax-sale of 1875.
The defendant, Merrill, relies, first, upon the validity of his title acquired by conveyance from the auditor, and, if this should be held defective, then upon an actual occupation of the land for more than twelve months, under such deed, before the institution of this suit. If neither of these defenses shall be sustained, he then relies upon actual occupation of those under whom he claims for more than three years, under the conveyance from G-win and Hemingway to J. M. Matthews, and before the institution of the suit in the chancery court of Bolivar county by the present complainants against the heirs at law of said J. M. Matthews for the cancellation of said conveyance; failing in this, he then invokes the general statute of limitation of ten years.
Of these defenses in their order of statement: The title of the state, derived under the sale for taxes in the year 1875, and conveyed by the auditor to the defendant in August, 1888, cannot be invoked by the defendant to destroy the estate in remainder of the complainants. At the time of the purchase by him of this title, he was tenant for life of the land, and the conveyance of the state’s title to him inured to the benefit equally of his life-estate and of complainants’ es
At the time of this purchase the defendant had no other title to the land; all claim on the part of the heirs at law of J. M. Matthews (of whom his deceased wife had been one), under the conveyance from Gwin and Hemingway, had been swept away and dissipated by the decree of the chancery court of Bolivar county. That claim was'as though it had never been, and the possession and ownership of the land by the defendant was in law referable only to the life-estate conveyed by the deed from Williams to Mrs. Matthews, and inherited from her by the defendant.
Being under disability to buy and set up the state’s title as against the remainder-men, the limitation prescribed by the fourth section of the act of March 2, 1888, cannot be invoked by the defendant. McGee v. Holmes, 63 Miss., 50.
The next defense for consideration is that of three years actual occupancy by Matthews under the Gwin aud Hemingway conveyance. By § 539 of the code of 1880, it is provided that “ actual occupation for three years, after one year
Ve do not now decide, for it is unnecessary to do so, whether the limitation by this section may be invoked as against remainder-men where the occupation relied on runs during the existence of the particular estate, and, consequently, at a time when no action could be brought by them for the recovery of the land. It is sufficient now to say that if this defense could have been relied on, it should have been invoked by the defendants in the proceedings instituted by complainants in the chancery court of Bolivar county for the cancellation of the tax-titles under which the possession is now claimed to have been held. If the defense is available now to the present defendant, it was then available to the defendants in that suit, and should have been relied on. But they failed to do so, and by the decree in that cause this title was entirely destroyed. After that decree had been rendered, that title was, as to the defendants in that suit and those in privity with them, as though it .never had been. It no longer exists as a sufficient defense in itself, or as part of any defense. It is incompetent as evidence, 'for, by the decree of a competent court, it has been declared a nullity, and, being a nullity, it is no more evidence of a “ conveyance by a tax-collector” than it is of a valid conveyance under a valid sale for taxes.
The only remaining defense to be noted is that of the ten-years’ statute of limitation. There are two reasons why this cannot be maintained. First, this bill was exhibited July 17, 1890, and the Conveyance to Matthews under which possession was first taken, was July 30,1880. So, less than ten years elapsed from the first claim of title or possession to the institution of this suit. Second, the adverse character of the pos
The decree is reversed and cause remanded.