43 So. 878 | Miss. | 1907
delivered the opinion of the court.
The case made by the record is as follows: On June 17, 1898, Peter Anderson filed his bill in the chancery court of Quitman county, showing that the land in controversy was sold to the state for taxes on July 4,1867, and that, there having been no purchase or redemption from that sale, it was again sold for taxes on May 10, 1875, under the abatement act of 1875 (Laws 1875, p. 11, c. 2), and that by mesne conveyances he had acquired said tax titles, and praying for a confirmation of his said tax title. On January 16, 1899, the defendants McLemore filed their answers to said bill, and on the same day J. W. Robertson filed his answer, adopting the answers of the McLemores. On January 17, 1900, the defendants filed an amendment to their answer, and prayed that their answer and the amendment thereto bo taken as a moss-bill, and that a decree be rendered declaring the deeds set out in complainant’s bill void, and cancelling the same as a cloud on their title, and for writ of possession for the lands, and for general relief. No process was issued upon this cross-bill, nor any notice thereof given until November 17, 1902. On that day the defendants, by their attorneys, gave notice in writing to the solicitor for the complainant, that the defendants had, by their solicitors, filed a cross-bill in the cause. This notice was dated November 17, 1902, and was served on that day. On November 18, 1902, the complainant dismissed his bill without prejudice. On November 21, 1902, Peter Ander
The land in controversy was patented to the state of Mississippi under the act of Congress known as the “Swamp' Land Act,” approved September 28, 1850 (9 Stat. 519, ch. 84) ; and on November 12, 1852, John I). McLemore located on the land scrip distributed to Coahoma county, pursuant to chapter 16, p. 41, Laws of 1852, the same being an act entitled “An act to provide for the construction of a levee upon the Mississippi river, for the reclamation of the state and school lands, and for other purposes,” approved March 15, 1852; and on May 30, 1853, pursuant to said location, a patent was duly issued to John D. McLemore for the same land. Upon the formation of Quit-man county on February 1, 1877, the land became a part thereof. Prior to that time it was a part of Tunica county.
To maintain their suit the cross-complainants introduced in evidence a deed from Gibbs & Hemingway, liquidating levee commissioners, to S. M. and J. H. McLemore; a certified copy of a tax deed, dated May 18, 1869, executed by the sheriff of Tunica county to the liquidating levee board; a certificate by the state land commissioner, showing that the land was patented to the state under the “Swamp.Land Act”; and an agreement of counsel, the fourth, fifth, sixth, seventh, tenth, eleventh, and thirteenth paragraphs of which are as follows: . “(4) That the said patent issued to J. D. McLemore on November 12, 1852, was legal and valid in all respects, and passed a fee-simple title to the land in controversy, unless it be that it was illegal to locate said land with scrip distributed to the president of the board
Tbe cross-defendants introduced in evidence a certified copy of a deed from tbe tax collector to tbe state of Mississippi, dated July 4, 1867; a certified copy of a copy of tbe list of lands sold to tbe state of Mississippi May 10, 1875. Tbe deed and sales list last mentioned were objected to by the cross-defendants, but tbe ground of tbe objection was not stated. A final decree was entered April 19, 1904, dismissing tbe cross-bill, and the cross-complainants have appealed. Tbe appellees rely on an alleged sale made July 4, 1867, to the state, and an alleged sale-on May 10, 1875, under tbe abatement act of 1875, under which two sales appellees claim tbe state bad title, and that, tbe state so having a valid title, appellees acquired that title by a deed from tbe auditor of tbe state of date April 13, 1888.
First, as to tbe alleged sale to tbe state in 1867, that sale was made on July 4, 1867. July 4, 1867, fell'on Thursday. Under tbe statute then in force, tax sales bad to be made on tbe first Monday in July. Laws 1863, p. Ill, cb. 7; Hardie v. Chrisman, 60 Miss., 671. There is absolutely no evidence whatever in this record to show that tbe sales were adjourned from day to day from July 1st, the first Monday of July, 1867, until July 4th. Nor is there any agreement in tbe record to-that effect. That sale was, therefore, made on tbe wrong day,, and was absolutely void. Mead v. Day, 54 Miss., 58; McGehee v. Martin, 53 Miss., 519; Harkreader v. Clayton, 56 Miss., 383, 31 Am. Rep., 369; Meyer v. Peebles, 58 Miss., 628; Byrd v. McDonald (Miss.), 28 South., 847.
But,'secondly, as to this alleged sale of July 4, 1867, which-
We think it is clear, on the facts of this case, having regard to the date of the alleged purchase from the state, April 13, 1888, and having regard to the date of the act of March 2,, 1888, that these appellees cannot invoke, for their protection, these statutes of limitation, which the state had waived beforeappellees acquired title by said section 5 of the act of 1888. Since, therefore, all that appellees ever had, furnishing them any semblance of title derived under the sale of July 4, 1867,., was the protection of these two statutes, and since the state waived those statutes and the appellants purchased in 1878 from the commissioners the title of the liquidating levee board, which title had been acquired May 18, 1869, the tax deed showing the sale was adjourned from day to day till the 18th, and since that title of the liquidating levee board so acquired May 18, 1869, is assailed only on the ground that it was void because the state had the title at the time of the sale, it is manifest that the appellants acquired a good title by their conveyances set out in the record, and that appellees are in no position to set up the act of 1860, or Code 1871, § 1709, having bought, what title they had after these statutes had been waived by the state by section 5 of said act of 1888. It is clear, therefore, first, that
But, as to the alleged sale of May 10, 1875, if the sale alleged to have occurred on May 10, 1875, is sufficiently shown by the certified copy, a copy of the list of lands sold to the state May 10, 1875, as to which we say nothing now, it does not appear that the auditor’s deed was based on such sale. The auditor’s ■deed recites a sale in 1879. There is no sales list showing that the land was1 struck off to the state in 1879; nor is there any proof made that the land had not become subject to taxation and sale for delinquency in 1879. There is no agreement that the recital in the auditor’s deed is a mistake, nor is there a " scintilla of evidence offered to show that it was a mistake. It may be true, as said by learned counsel for appellees, that the ■cases of French v. McAndrew, 61 Miss., 187, and Bower v. Chess, 83 Miss., 218, 35 South., 444, deal with tax collectors’ deeds and not with the deed of the auditor, and that the principle of those cases may not be, in its whole extent, applicable to an auditor’s deed; but that does not meet the difficulty, on this record, that there is neither an agreement, nor evidence •showing, in any way, that the recital in the auditor’s deed was •a mistake. We must, perforce, therefore, on the face of this record, accept the statement in the auditor’s deed as true that the sale was made in 1879 on which the auditor’s deed was based. As there is no sales list showing that the land was struck off to the state in 1879, nor any evidence that the land had not become subject to taxation and sale for delinquency in 1879,
But there is another fatal objection to the view of the counsel for appellees on the record as presented to us. If it were considered, about which we now express no opinion, that the absence from the auditor’s office of the original sales list of lands sold under the abatement act did not invalidate that alleged sale, as showing want of power in the auditor to sell in the absence of such original sales list, it nevertheless clearly appears that the auditor’s deed in this case, whether it be the original deed or a certified copy, did not contain the essential indorsements required specificially and expressly by Code 1880, § 562. The failure of such deed to show these indorsements, by the express terms of the statute, made the auditor’s deed absolutely void. This error is so fundamental, resuling directly from the express and positive provision of the statute law, that we do not think the failure to object to it in the court.
We will, however, add that we are of the opinion that the three-year limitation of Code 1880, § 539, invoked, cannot apply on the facts of this record to protect the possession of Lind-, say or Nolan, since they were purchasers .pendente Me. The suit was begun by their grantor, Anderson, on June 17, 1898. They purchased December 2, 1898. Anderson continued to prosecute the suit long after the first cross-bill was filed, and until more than three years after their adverse possession began. The cross-bill was filed January 17, 1900. Anderson dismissed •his bill November 18, 1902. As Lindsay and Nolan purchased pendente Me, they should be held, on true equitable principles, to have been affected by everything that appeared in, and might have been done in, the proceeding of their grantor, whose bill set up the adverse claim of the present cross-complainants, and alleged possession in their tenant. True, Nolan and Lindsay were afterwards formally brought into the casé; but were they not already there in contemplation of law ? The very title under which they claim is assailed in a suit'brought to quiet title, which suit was pending when they bought, and such assault yas begun in less than two years from that purchase. To allow Anderson to set up- for his vendees the three-year limitation of the Code of 1880 under such circumstances would be in the highest degree inequitable.
Reversed and remanded.
Subsequent proceedings.
After the delivery of the foregoing opinion proceedings were had as stated in the following, the final opinion delivered in the case.
delivered the opinion of the court.
This case was heard and decided at a preceding term of this court. Afterwards a suggestion of error was filed in respect to that part of the opinion touching the location of the land scrip involved in the case. This suggestion of error, after due consideration, was sustained, and that part of the opinion eliminated. Later another suggestion of error, general in its nature, was filed. This suggestion of error was being considered when it was ascertained that the original judgment in the ease had been rendered 'in this court when one of the parties was dead, which fact, it seems, came to the knowledge of counsel on both sides after the rendition of the judgment. Thereupon the. former original judgment of the court was vacated, and the cause remanded to the docket for consideration anew.
The court, as at present constituted, have given the most careful consideration to all the briefs in the cause, including the suggestion of error and the reply, and we are of the opinion that the original judgment entered in this case (43 South., 878) is manifesttly correct on this record.
This case was decided May 20, 1907, but for the reasons stated in the opinion rendered December 21, 1908, post, 65, its reporting was postponed.