72 So. 129 | Miss. | 1916
delivered the opinion of the court.
This cause was affirmed on a former day of this term without a written opinion. An elaborate suggestion of error has been filed, and in view of the questions so earnestly pressed by counsel, we proceed to state briefly the reasons which induced us to affirm the case. The case, as presented by the pleadings, is as follows: E. Gr. Caston, appellee herein, as complainant in the court below, exhibited his bill in the chancery court of Marion county to confirm his title to certain lands therein mentioned, basing his claim of title on a patent issued to him by the state of Mississippi December 12, 1905. The bill prayed that the claim of title of the defendant T. R. Willoughby be canceled.
The evidence in the case shows that Josiah Holmes entered the lands from the United States government December 24, 1858, but the records of the land office further show that this entry was canceled December 20, 1897, and that no patent was ever issued to Josiah Holmes. The evidence further shows that the land was donated' to the state by the act of Congress approved September 28-, 1850; that these lands were selected by the state and listed in what is known as* list No. 29;
It thus appears by the undisputed record evidence in the case that the proper authority of the United States government did not approve the selection of these lands as swamp and overflowed lands, and therefore within the grant of the act of September 28, 1850, until a short time prior to the date of the issuance of patent •by the state land commissioner to appellee. The material inquiry, therefore, is whether the statute of limitations can be invoked by appellant in this ease; or, in other words, whether the statute began to run until the Secretary of the Interior approved the selection as swamp and overflowed land and thereby perfected the state’s claim.
Without a prolonged discussion of the question, we hold that appellant did not acquire title by adverse possession for the reason that the statute of limitations cannot be invoked by appellant in aid of his title. It may be conceded that the act approved September 28, 1850, was a grant in praeseni% and that if the land was in deed and in fact of the character contemplated by the act, that is, wet or overflowed lands, the beneficial interest has been in the state of Mississippi since the approval of the act. At the same time, the grant, as stated by the United States supreme court, was in process of administration, and the land was subject to the jurisdiction of the Land Department of the United States government until the patent was issued. It is well settled that the statute of limitation here invoked does no run against the United States government, and, since January 24, 1877, does not run against the state of Mississippi. . It is true that Josiah Holmes entered these lands in 1858, and even though he may have un
“Although neither I nor those under whom I claim ever had a record title either from the United States or from the state' of Mississippi, we yet have title by adverse possession.”
Until the selection of the lands, as being of the character of lands passing under the act of 1850, had been approved, the whole quéstion still remained under the control of the United States Land Department, at least to the extent of its full power and authority in all proper cases to order a resurvey or to correct any errors or mistakes. Until the selection has been approved and a patent issued conflicting claims must be settled by the United States Land Department and not bv the courts. Brown v. Hitchcock, 173 U. S. 473, 19 Sup. Ct. 485, 43 L. Ed. 772.
With reference to the statute of limitations, we believe the true rule should be and is that it does not ordinarily begin to run until the sovereign power has conveyed the title by a proper patent; and under the facts of the present case we are convinced that the statute did not begin to run until the title was confirmed in the state by the proper approval of the selection by the Secretary of the Interior. Until the title of the state has thus been perfected and the jurisdiction of the United States Land Department finally is released, the state is not in a position to take account of squatters upon such lands or adequately to protect her rights. Under this view of the case it is unnecessary for us to examine the evidence to determine whe
Suggestion of error overruled.